Texas Judge Sues Over Right To Oppose Same-Sex Marriage

A county judge in Jack County, Texas has filed suit in a Texas federal district court seeking declaratory and injunctive relief to prevent any future enforcement action by the Texas State Commission on Judicial Conduct against him. The complaint (full text) in Umphress v. Hall, (ND TX, filed 3/18/2020) alleges in part:

A few months ago, the Texas State Commission on Judicial Conduct issued a “public warning” to Dianne Hensley, a justice of the peace who recuses herself from officiating at same-sex marriage ceremonies on account of her Christian faith....  The Commission’s interpretation of Canon 4A(1) threatens every judge in Texas who refuses to perform same-sex marriages, as well as those who publicly evince disapproval of same-sex marriage or homosexual conduct in their extra-judicial activities.....

The Court should therefore declare that the First Amendment protects Judge Umphress’s right to conduct his extra-judicial activities in a manner that evinces disapproval of same-sex marriage and homosexual conduct.

Pink News reports on the lawsuit.

Court Refuses To Order Church Membership Meeting

In Ceglar v. Christ's Harbor Church, (TX App., Feb. 27, 2020), a Texas state appellate court dismissed on ecclesiastical abstention grounds a suit brought by some 25 church members seeking a court order forcing the Church Elders to call a membership meeting.  Two female members of the Church charged its newly-hired senior pastor with inappropriate behavior. Plaintiffs wanted the membership meeting to decide whether the pastor should be disciplined or fired. Under the Church's bylaws, calling a special meeting requires a petition signed by 15% of the Church's members. The court concluded that, given the criteria for Church membership set out in the by-laws, the court cannot determine who is a member without delving into doctrinal matters.

Texas Sues California In Supreme Court Over Travel Ban To States Allowing LGBTQ Discrimination

This week, the state of Texas filed an original suit in the U.S. Supreme Court against the state of California challenging California's ban on the state paying for travel by its employees to other states that allow discrimination against LGBTQ individuals or families. The complaint (full text of complaint and brief in support) in State  of Texas v. State of California, (US Sup. Ct., filed/2/10/2020) reads in part:

California has enacted and is enforcing economic sanctions against Texas, Texas citizens,and Texas businesses. California has targeted Texas and its residents because To Texas protects the religious freedom of faith-based child welfare providers within its borders....

California’s sanctions against Texas and Texans are born of religious animus and violate the Constitution’s Privileges and Immunities Clause, U.S. Const. art. IV, § 2, cl. 1; Interstate Commerce Clause, id. art. I, § 8, cl. 3; and guarantee of Equal Protection, id. amend. XIV, § 1.

The complaint and brief in support of the state's motion for leave to file a bill of complaint which is attached to the complaint seeks an order forcing California to take down its travel ban or remove Texas from it. Texas Attorney General's office has issued a press release announcing the filing of the suit.

Attorney Has Standing To Challenge Judge's Prayer Practices

In Freedom From Religion Foundation, Inc. v. Mack, (SD TX, Jan. 13, 2010), a Texas federal district court held that an attorney has standing to challenge a Texas Justice of the Peace's practice of having his court sessions opened with a prayer. The attorney, who is non-religious, has declined clients in order to avoid the judge's courtroom. The court said in part:

Here, Attorney Roe has offered testimony that he practices law in Montgomery County, Texas, has appeared in Judge Mack’s courtroom on several occasions, and that he avoids the courtroom because of Judge Mack’s practice. The harm alleged does not occur only because he enters the courtroom, but also because he must avoid the courtroom since the practice continues. Therefore, there is a substantive risk that were he to accept a case in Judge Mack’s court, he will be exposed to the prayer practice. Hence, Attorney Roe has satisfied the standing requirements.

Judge Mack also challenges the FFRF’s standing. Because the Court has determined that Attorney Roe has standing, the FFRF has associational standing.

Judge Who Refused To Perform Same-Sex Ceremonies Sues Over Reprimand

As previously reported, in November the Texas State Commission on Judicial Conduct issued a Public Warning to Justice of the Peace Dianne Hensley because of her refusal to perform same-sex marriage ceremonies. Now a lawsuit has been filled challenging the Commission's action.  The complaint (full text) in Hensley v. Texas State Commission on Judicial Conduct, (TX Dist. Ct., filed 12/16/2019) contends that the Commission's action violates Judge Hensley's rights under the Texas Religious Freedom Restoration Act. The complaint also seeks a class-wide declaratory judgment. Fox 44 News reports on the lawsuit.

Cert. Denied In Suit Against Priest Over Baptism Ritual

The U.S. Supreme Court today denied review in Fermin v. Priest of St, Mary- Marfa, Texas, (Docket No. 19-471, certiorari denied 12/16/2019) (Order List). In the case, the U.S, 5th Circuit Court of Appeals (full text of opinion) affirmed the dismissal of a suit in which a Texas man claimed that an unnamed priest used a crucifix during his baptism in 1925 "in violation of God's law" (including the Second Commandment's prohibition of idolatry).

Methodist Parent Body Sues SMU Over Attempted Split From Church Control

Suit was filed last week in a Texas state trial court by the regional parent body of the Methodist Church against Southern Methodist University alleging that SMU last month filed invalid amendments to its Articles of Incorporation purporting to eliminate the parent body's control over SMU's board of trustees, over amendments to SMU's Articles of Incorporation, and over sale of SMU's property.  The complaint (full text) in South Central Jurisdictional Conference of the United Methodist Church v. Southern Methodist University, (TX Dist. Ct., filed 12/4/2019), alleges:

The November 2019 Articles make no mention of SCJC, much less any mention of the rights permanently guaranteed to SCJC by SMU’s governing documents. Instead, by deleting any mention of SCJC and its rights, the November 2019 Articles attempt to terminate all of SCJC’s rights and relationship with SMU without approval or authorization of SCJC for the amendment in Violation of SMU’s governing documents and the Trustees’ fiduciary duties to SCJC.

RNS, reporting on the lawsuit, says that the moves by SMU are "part of the latest fallout over the global denomination's decision earlier this year to strengthen language in its rulebook barring LGBTQ members from marriage and ordination."

Texas Justice of the Peace Warned Over Her Refusal To Perform Same-Sex Weddings

Last month, the Texas State Commission on Judicial Conduct issued a Public Warning (full text) to Justice of the Peace Dianne Hensley. The Nov. 12 warning reads in part:

Beginning on about August 1, 2016, Judge Hensley and her court staff began giving all same-sex couples wishing to be married by Judge Hensley a document which stated "I'm sorry, but Judge Hensley has a sincerely held religious belief as a Christian, and will not be able to perform any same sex weddings." The document contained a list of local persons who would officiate a same-sex wedding....

... Judge Hensley testified that she would recuse herself from a case in which a party doubted her impartiality on the basis that she publicly refuses to perform same-sex weddings.....

... [T]he Texas State Commission on Judicial Conduct has determined that the Honorable Judge Dianne Hensley ... should be publicly warned for casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person's sexual orientation in violation of Canon 4A(l) of the Texas Code of Judicial Conduct.

Some Factional Church Claims Subject To Ecclesiastical Abstention Doctrine

In El Pescador Church, Inc. v. Ferrero, (TX App., Nov. 25, 2019), a Texas state appeals court held that the ecclesiastical abstention doctrine requires dismissal of a claim by one church faction that defendants wrongfully exercised control over property of the non-denominational church by changing banks, changing locks, taking control of the tithe and "subjecting any and all parities [sic] that disagree with these actions to intimidation, ridicule, and humiliation directed from the pulpit to the faithful." The court said in part:

[T]he evidence that the Church used to respond to the motion for summary judgment shows how its case is inextricably intertwined with ecclesiastical issues. That evidence consists [in part of] ... meeting minutes [which] state that "the congregation requested to place in discipline the Treasurer--Armando Oaxaca and for him to be destitute of the position of Treasurer." The minutes conclude that "Oaxaca can't function as Treasurer since he is not attending services or tithing to the congregation." Discipline of church members, particularly based on a scriptural concept such as tithing, are uniquely ecclesiastical....

The other claims--fraud and breach of fiduciary duty, equally implicate facts that are inextricably intertwined with internal church governance, the role of the pastor in church affairs, membership in the congregation, and statements of the pastor from the pulpit....

 Certain other claims however are not subject to dismissal:

The Church also sued Nunez for advice that he gave to Hector Ferrero and the congregation. He is alleged to have provided accounting and legal advice while not being licensed in those occupations. There is no allegation or evidence that his advice was ecclesiastical in nature, but rather the pleading alleges it is related to corporate governance under the corporation's articles of incorporation and Texas law. We view those claims differently from the allegations against the church officers and congregants.....

5th Circuit Upholds Stay of Execution For Buddhist Inmate

In Murphy v. Collier, (5th Cir., Nov. 12, 2019), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, upheld a stay of execution granted last week by a Texas federal district court in the case of a Buddhist inmate who challenges the access he will have to his religious adviser prior to his execution. The district court granted a stay to allow it time to explore factual concerns about the balance between the inmate's religious rights and the prison’s valid concerns for security. (See prior posting.) Christian and Muslim inmates have access to chaplains until the moment they enter the execution chamber.  Members of other religions have access to their outside clergy only until 5:00 p.m.on the day of execution. In his majority opinion for the 5th Circuit, Judge Dennis wrote in part:

We conclude that the district court did not abuse its discretion in granting Murphy’s stay. We agree with the district court’s implicit finding that Murphy has a strong likelihood of success on the merits of his claim that the TDCJ policy violates his rights by allowing inmates who share the same faith as TDCJ-employed clergy greater access to a spiritual advisor in the death house.

Judge Elrod dissented, saying in part:

Because I believe Murphy did not demonstrate that he is likely to succeed on his brand-new, untimely, and unexhausted claim regarding the TDCJ’s pre-execution holding-area protocol, I would hold that the district court abused its discretion in granting Murphy’s motion for stay of execution.

CNN reports on the decision.

New Stay of Execution For Buddhist Inmate Over Access To Chaplain

In Murphy v. Collier, (SD TX, Nov. 7, 2019), a Texas federal district court stayed the execution of Patrick Murphy because of differential treatment of the religious needs of prisoners being executed. The U.S. Supreme Court stayed a previous execution date because of Texas' policy to allow a Christian chaplain to be in the execution chamber, but Murphy's Buddhist spiritual adviser could only be in an adjacent room. (See prior posting.) Texas then modified its procedures and allowed no chaplains in the execution chamber. (See prior posting.) However Murphy claims that there is still differential treatment:

Murphy’s amended complaint, however, has moved its primary focus to the interaction an inmate has with his spiritual advisor before entering the execution chamber..... [A]ll inmates have access to their spiritual advisor during business hours in the two-and-a-half days leading up to the execution. An inmate, however, may only meet with non-TDCJ spiritual advisors in the holding area (generally referred to as the “death house”) between 3:00 and 4:00 p.m. on the day of execution. For the next two hours, preparations are made for the execution. The inmate may make phone calls, including to his spiritual advisor, until 5:00 p.m. Only TDCJ personnel may interact with the inmate thereafter.

The policy, however, does not place any limitation on visits by TDCJ-employed clergy, “who appear to have access to an inmate until the minute he enters the execution chamber.”... Murphy argues that the amended policy still favors some religions over others because TDCJ-employed chaplains, who are all Christian or Muslim, have greater access to the condemned than non-TDCJ employee spiritual advisors.

The court concluded:

The concerns raised by the amended complaint’s focus on the pre-execution procedure are as compelling as those in the original complaint..... A stay will allow the Court time to explore and resolve serious factual concerns about the balance between Murphy’s religious rights and the prison’s valid concerns for security.

Texas Tribune reports on the decision.

Judicial Ethics Complaint Filed Over Judge's Gift of Bible To Convicted Murder Defendant

On Oct. 3, the Freedom From Religion Foundation filed a complaint with the Texas State Commission on Judicial Conduct (full text) asking it to investigate the actions of state trial judge Tammy Kemp at the widely covered murder trial of Former Dallas Police Officer Amber Guyger.  The complaint states in part:

We write to raise your awareness of Judge Kemp’s actions at the close of the trial — during which she gifted a Christian bible, instructing the convicted criminal on how to read the bible and which passages to pay attention to, and witnessing to that convicted murderer. These proselytizing actions overstepped judicial authority, were inappropriate and were unconstitutional....

We understand that it was an emotional moment, particularly when the victim’s brother, Brandt Jean, publicly forgave and hugged Guyger. It is perfectly acceptable for private citizens to express their religious beliefs in court, but the rules are different for those acting in a governmental role. We, too, believe our criminal justice system needs more compassion from judges and prosecutors. But here, compassion crossed the line into coercion. And there can be few relationships more coercive than a sentencing judge in a criminal trial and a citizen accused and convicted of a crime.

FFRF issued a press release announcing the filing of the complaint.

Trial Judge's Alleged Anti-Jewish Bias Leads To Stay of Execution

In Ex parte Halprin, (TX Ct. Crim. App., Oct. 4, 2019), the Texas' Court of Criminal Appeals stayed the execution of a Jewish inmate who claims that his trial judge was biased against him. Petitioner claims that the judge regularly used racist language and antisemitic slurs. Plaintiff's Application for a Writ of Habeas Corpus contends:

The ... claim presents newly uncovered evidence that trial judge Vickers Cunningham referred to Mr. Halprin as a “goddamn kike” and “fuckin’ Jew,” and to his Latino co-defendants as “wetbacks,” when the judge bragged about his role in convicting and sentencing to death the Jewish and Latino members of the Texas 7. The evidence of Judge Cunningham’s bias comes primarily from first-hand accounts of disinterested witnesses to his prejudiced statements... and Judge Cunningham’s lifelong association with racist and anti-Semitic role models....

The court remanded the case for determination if petitioner's due process and free exercise rights were violated. Courthouse News Service reports on the decision.

Texans Sue Under the "Save Chick-fil-A" Law

As previously reported, in June Texas Gov. Greg Abbott signed a bill which prohibits any governmental entity in Texas from taking adverse action against any person because of the person's affiliation, contribution or support for a religious organization. The law was aimed at San Antonio's exclusion of Chick-fil-A from operating at the San Antonio's airport.  The restaurant chain has been criticized for its contributions to organizations that oppose same-sex marriage. Last week, five Texas residents filed suit in a state trial court under the new law seeking an injunction to prevent the city from continuing to exclude Chick-fil-A from the airport. The complaint (full text) in Von Dohlen v. City of San Antonio, (TX Dist. Ct., filed 9/5/2019), alleges in part:

The law of Texas prohibits governmental entities from taking “adverse action” against corporations based on their contributions to a religious organization. See Texas Gov’t Code § 2400.002. The City of San Antonio is violating this statutory command by excluding Chick-fil-A from the San Antonio airport on account of its donations to Christian organizations such as the Salvation Army and the Fellowship of Christian Athletes. 

20. For years, liberal activists have been attacking Chick-fil-A because it gives money to Christian organizations that accept the Bible as the Word of God.

21. Because these Bible-believing Christian organizations derive their notions of morality from the Bible rather than modern-day cultural fads, they oppose homosexual behavior and same-sex marriage.

San Antonio Family Association issued a press release announcing the filing of the lawsuit.

Indian Tribe Sues Over Exclusion From Committee Dealing With Ancestors' Remains

A lawsuit was filed yesterday in a Texas federal district court by a non-federally recognized Indian tribe against Texas officials involved in redevelopment of the Alamo complex complaining about the tribe's exclusion from a committee dealing with human remains found at the site. Plaintiffs say their ancestors are among those buried there, and some of the tribes allowed on the committee are responsible for the deaths of those buried in the cemetery.

The complaint (full text) in Tap Pilam Coahuiltecan Nation v. Alamo Trust, Inc., (WD TX, filed 9/10/2019), contends that requirements of the San Antonio's zoning laws that refer to the National Historic Preservation Act are not being followed in dealing with a cemetery on the redevelopment site. Instead authorities are applying the Native American Grave Protection Act which excludes non-recognized tribes. The complaint alleges in part:

Defendants are ignoring the City of San Antonio’s Unified Development Code and arbitrarily applying NAGPRA for the purpose of excluding the Plaintiffs and other lineal descendants from participation. The reason for this is obvious, the Defendants are planning to conduct their archaeological activities in a manner that violates local, state and federal laws in an attempt to reduce cost and time.

Plaintiffs also complain that they were denied use of the Alamo Chapel for their annual Sunrise Memorial Ceremony. Courthouse News Service reports on the lawsuit.

Ecclesiastical Abstention Doctrine Requires Dismissal of Pastor's Contract Claim

In In re First Christian Methodist Evangelistic Church, (TX App., Aug. 30, 2019), a Texas state appellate court held that the ecclesiastical abstention doctrine, as a matter of constitutional law, prevented civil courts from adjudicating a pastor's claim that he was entitled to 6 months severance pay under his employment contract. The court said in part:

[T]o determine if the Church was required to pay the Senior Pastor severance under the contract, the trial court will be required to determine why the Senior Pastor was terminated and, if the termination was for misconduct, the court will be required to determine if the Senior Pastor was properly terminated for misconduct as defined by the Church’s Book of Discipline and ecclesiastical rules.... The ecclesiastical nature of the dispute cannot be severed from the contractual issues asserted by the Senior Pastor. 

Texas Limit On Marriage Officiants Upheld

In Center for Inquiry, Inc. v. Warren, (ND TX, Aug. 16, 2019), a Texas federal district court rejected a number of constitutional challenges to a Texas law that limits those who can officiate at marriage ceremonies to clergy and specified government official. It does not allow other secular celebrants. The court, applying the Lemon test held that the law does not violate the Establishment Clause, saying in part:

The Statute does not discriminate among religions nor does it have the primary objective of favoring religion over nonreligion. At most, the Statute provides a benefit to religion that is indirect or incidental in light of the historical context of this Statute; however, this does not make the Statute unconstitutional.... The Statute still provides for civil, nonreligious ceremonies performed by judges, while also allowing those who wish to be married in a religious ceremony to do so.

The court also rejected an equal protection challenge, saying in part:

The Statute in this case rationally serves that purpose by limiting secular officiants to current and retired judges and by leaving it up to the religious organization—any religious organization—to determine who is authorized in accordance with its belief system to solemnize marriages. The fact that the Statute does not allow every secular individual trained to solemnize marriages to legally solemnize marriages in Texas does not make this statute unconstitutional. Instead, there is a rational basis for the Statute’s limitation based on both the historical practice of allowing judicial and religious officials to solemnize marriages, and because these individuals and their respective organizations can reasonably be expected to ensure the prerequisites to marriage are met and that the ceremony contains the necessary level of respect and solemnity without the need for significant involvement and oversight by the state.

Factional Dispute In Church Dismissed

In In re Torres, (TX App., July 30, 2019), a Texas appellate court ordered dismissal of a suit between two factions of a church known as Templo Bautista.  According to the court:

Ramirez and Herrera complain about the removal of a pastor, his replacement by another, the manner in which that was done, whether it complied with the church procedures, the removal of parishioners as church members, and the way Torres and those aligned with him came to govern their church.

The court held that these "are controversies insulated from judicial interference under the neutral principles methodology. Thus, the trial court lacked subject-matter jurisdiction to address or regulate them."

Court Rejects Free Exercise Defense To Infliction of Emotional Distress Claim

In Lawrence v. Treybig, (TX App., June 20, 2019), a Texas state appeals court affirmed a trial court jury's award of nominal damages and a permanent injunction against Arthur Lawrence who had been hired by a wealthy family as a basketball coach for their son, Cody Treybig, when he was nine years old. Lawrence remained in that position for six years during which time he convinced Cody of Lawrence's paranoid religious views:

Lawrence ... told Cody that Jimmy Treybig, Cody’s father, was a high-level member of an evil society called the Illuminati; that Cody’s school, his hometown of Austin, and colleges in general were full of evil Illuminati members; that the rapture was imminent; that Cody’s parents intended to have an RFID5 chip implanted into Cody’s body, which would damn him to hell; that the RFID chip would control Cody’s mind and would contain cyanide that could be used to kill him if he resisted; and that Cody’s parents and brother hated him and were evil.

In the suit against Lawrence for intentional infliction of emotional distress, the court rejected Lawrence's free exercise defense:

Lawrence argues that the jury could not determine whether his conduct was extreme and outrageous without weighing the veracity of his religious beliefs and that the trial court therefore should have dismissed Cody’s claims. However, whether Lawrence’s views are sincerely held or whether he believed that he was helping to save Cody from damnation is irrelevant under the facts of this case, in which Lawrence’s conduct, no matter its motivation, was extreme and outrageous.

The court affirmed the award of damages of $4 and an injunction barring Lawrence from coming within 1,000 feet of Cody or contacting Cody or his family.

Texas Governor Signs "Save Chik-fil-A" Law

On Monday, Texas Gov. Greg Abbott signed into law S.B. 1978 (full text) which prohibits any governmental entity in Texas from taking adverse action against any person because of the person's affiliation, contribution or support for a religious organization. According to KXAN News:

The bill was brought forward by Republicans after San Antonio City Council voted in March to exclude Chik-fil-A from having airport concessions in their city because of the fast-food chain's owners' record on LGBT issues, specifically over donations to the Fellowship of Christian Athletes, the Salvation Army, and a George youth home; whose leaders advocate for marriage to be between one-man and one-woman.

The law has become known as the "Save Chik-fil-A bill."