Break-Away Texas Anglican Group Loses In Latest Round of Long-Running Case

In The Episcopal Church v. Salazar, (TX App, April 5, 2018), a Texas state appeals court issued another ruling in a long running dispute over ownership of property of the Episcopal Diocese of Fort Worth. In 2008, the Diocese voted to disaffiliate from The Episcopal Church and to become part of the Anglican Province of the Southern Cone. In 2009, The Episcopal Church sued claiming ownership of the Diocese's property. The litigation has moved up and down the Texas court system, including to the Texas Supreme Court, ever since.  In this week's opinion, the state Court of Appeals reversed in part a trial court decision and held that control of the property resides in the group that remained with The Episcopal Church under the leadership of Bishop Scott Mayer, rather than with the break-away group led by Bishop Jack Iker. The court said in part:

Individual members of a parish may decide to worship elsewhere; a majority of individual members of a parish or diocese may decide to do so. But when they leave, they are no longer “Episcopalians” as identified by TEC; they become something else. And that something else is not entitled to retain property if that property, under the terms of the deed, is held in trust for a TEC-affiliated diocese or congregation. By rejecting TEC, Appellees also rejected any claim to items and property affiliated with TEC or with being a TEC-affiliated diocese to the extent that the instruments of ownership spell out an express interest. While a decision to disaffiliate is an ecclesiastical matter, what happens to the property is not, unless the affairs have been ordered so that the ecclesiastical decisions effectively determine the property issue....

In reaching its decision, the court refused to rely on  The Episcopal Church's Dennis Canon that "purports to impose a trust for TEC and TEC’s diocese on parish, mission, and congregation real and personal property," saying in part:

Because under Texas law, an entity that does not own the property to be held in trust cannot establish a trust for itself simply by decreeing that it is the beneficiary of a trust, the Dennis Canon, by itself, did not establish a trust under Texas law....

The Fort Worth Star Telegram reporting on the decision says that it is likely to be appealed to the Texas Supreme Court.

Cult Leader Sentenced To 99 Years In Starvation Death of Young Boy

Dallas Morning News reports that a Texas jury last Friday sentenced 52-year old Aracely Meza-- the religious leader of a church known as Iglesia Internacional Jesus es el Rey-- to 99 years in prison and a $10,000 fine in the 2015 starvation death of a 2-year old boy.  Meza had ordered food to be withheld from the boy in order to exorcise the demon of manipulation that she believed possessed him.  The boy and his family lived on a commune run by Meza, who claims to be a prophet. When the boy died, his parents were afraid to report the death to police because they were undocumented aliens from Mexico.  With Meza, they took the boy for burial back to Mexico, where the parents remain.

Suit By "Clock Boy" Is Dismissed

In Mohamed v. Irving Independent School District, (ND TYX, March 13, 2018), a Texas federal district court dismissed a number of claims brought on behalf of the so-called "clock boy"-- a 14-year old African-American Muslim student who was suspended from school and arrested on "hoax bomb" charges when he brought an alarm clock he had constructed to school.  The complaint charged in part that the school district "has an 'ugly history of race struggles,' and the State of Texas and the IISD have a 'history of discrimination against Muslims in Texas curriculum and schools.'"  The court concluded that the complaint:

does not contain sufficient factual allegations from which the court can reasonably infer that A.M. was subject to unequal disciplinary treatment based on his religion or race....

Daily Caller reports on the decision.

Suit Challenges City's Forcing of Homeless Into Faith-Based Shelters

In Amarillo, Texas, an advocate for the homeless has filed a federal lawsuit challenging the city's attempts to move homeless individuals from a tent city known as Christ Church Camp of New Beginnings to traditional homeless shelters.  The complaint (full text) in Donelson v. City of Amarillo, (ND TX, filed 2/28/ 2018), contends in part that the city has violated the Establishment Clause by forcing people into faith-based shelters.  Texas Observer reports on the lawsuit.

Most of Church Director's Claims Dismissed Under Ecclesiastical Abstention Doctrine

In Kelly v. St. Luke Community United Methodist Church, (TX App., Feb. 1, 2018), a Texas state appellate court applied the ecclesiastical abstention doctrine to dismiss most of the claims brought by a fired church Director of Operations. The court said in part:

the substance of Kelly’s claims for negligence, fraud, misrepresentation, age and sex discrimination, and  defamatory statements published within the church community relates to internal matters of church governance and each of those claims is “inextricably intertwined” with those internal matters.... While the elements of those claims can be ascertained using secular principles, the application of those principles to impose civil liability on appellees would impinge upon the church’s ability to manage its internal affairs.

However the court allowed plaintiff to move ahead with her  defamation claim based on statements published to persons outside the church.

Suit Over Opening Prayers In Courtroom Survives Motion To Dismiss

In Freedom From Religion Foundation, Inc. v. Mack, (SD TX, Jan. 19, 2018), a Texas federal district court refused to dismiss a an Establishment Clause challenge to the practice by a Texas Justice of the Peace of opening each court session with a lengthy Christian prayer by a guest chaplain from his chaplaincy program. The court concluded that two of the three plaintiffs had standing, and that they had stated a plausible claim that the judge's prayer practice violates the Lemon test.  the judge had campaigned on a platform of reinstituting religious values within the office.  Both Freedom From Religion Foundation and First Liberty issued press releases announcing the decision. First Liberty also has links to some of the pleadings in the case.  (See prior related posting.)

School District Says First Amendment Bars District Diwali Holiday

According to Fox4News yesterday, Coppell Independent School District in Texas has refused requests to schedule a day off from school during Diwali. Nearly half the students in the school district are Asian.  The school board however took the position that principles of separation of church and state prevent it from recognizing a religious holiday.  When proponents argued that the district schedules a holiday on Good Friday, the school district responded that Good Friday is considered a professional development and bad weather make-up day.

FEMA Policy Change: Houses of Worship Now Eligible For Disaster Relief

The Federal Emergency Management Agency announced yesterday that:

private nonprofit houses of worship are now eligible for disaster assistance as community centers, without regard to their secular or religious nature.  These changes are effective for disasters declared on or after August 23, 2017 and for applications for assistance that were pending with FEMA as of August 23, 2017, including applications on first- or second-level appeal, that as of today have not yet been resolved by FEMA.

The policy change, also reflected in a new edition of FEMA's Public Assistance Program Policy Guide, reverses a long-standing policy that is currently being challenged in two separate lawsuits growing our of recent hurricane damage in Texas and Florida. (See prior posting.) Becket issued a press release calling attention to FEMA's policy change.

More Challenges To FEMA's Policy On Disaster Aid To Religious Facilities

As three churches filed an appeal with the 5th Circuit (full text of Emergency Motion) after a Texas federal district court refused to enjoin a FEMA Policy Guideline that bars disaster relief grants for religious facilities, two Florida synagogues filed suit seeking to invalidate the same FEMA regulation. According to yesterday's Miami Herald, Chabad of Key West and Chabad of the Space Coast in Satellite Beach are seeking FEMA grants for repairs after damage from Hurricane Irma.  They contend that FEMA's policy violates their rights under the 1st Amendment and RFRA.

Court Upholds FEMA Policy Denying Disaster Grants To Religious Facilities

In Harvest Family Church v. Federal Emergency Management Agency, (SD TX, Dec. 7, 2017), a Texas federal district court refused to issue a preliminary injunction against a FEMA Policy Guideline that bars disaster relief grants to facilities that are used primarily for religious activities. (The Guideline also bars grants to facilities used primarily for political, athletic, recreational, vocational, or academic activities.)  The court concluded that plaintiff had not shown a substantial likelihood of success on its Free Exercise challenge to the Guideline.  It held that the case is governed not by the U.S. Supreme Court's Trinity Lutheran decision, but instead by the Supreme Court's decision in Locke v. Davey:

[T]he Locke plaintiff was not denied a scholarship because of what he was, but “because of what he proposed to do—use the funds to prepare for the ministry.” ... In Trinity Lutheran, on the other hand ... [t]he funds were not denied because of what they would be used for—a non-religious use—but because of the church’s status as a religious institution.... In the instant case, FEMA’s policy is closer to the scholarship in Locke. Plaintiffs would use the FEMA funds to rebuild facilities used primarily to promote religious activities.... Further, FEMA’s policy even distinguishes based on use, rather than status or identity....

MySanAntonio.com reports on the decision. [Thanks to Marty Lederman via Religionlaw for the lead.]

Developments In Church Eligibility For FEMA Aid

As previously reported, three Texas churches have filed suit in federal district court challenging FEMA's policy of refusing disaster aid for houses of worship. FEMA, which is in the process of reviewing its policy, has refused to answer the complaint despite the court setting a Dec.1 deadline. According to the Houston Chronicle, just before the deadline passed, a group of civil rights organizations filed an amicus brief defending FEMA's policy.  Three hours after that brief was filed, federal district judge Keith P. Ellison who was assigned to the case recused himself, without explanation.

Meanwhile, as reported by Christian Times, on Thursday the House Transportation and Infrastructure Committee approved and sent on to the full House H.R. 4460, the Disaster Recovery Reform Act (full text). Section 211 of that bill amends 42 USC Sec. 5172 to add:

A church, synagogue, mosque, temple, or other house of worship, and a private nonprofit facility operated by a religious organization, shall be eligible for [disaster relief] ..., without regard to the religious character of the facility or the primary religious use of the facility.

Federal Court Strikes Texas' "Dismemberment Abortion" Ban

In Whole Woman's Health v. Paxton, (WD TX, Nov. 22, 2017), a Texas federal district court struck down Texas' ban on abortions performed through the standard dilation and evacuation procedure-- a procedure that the Texas law terms "dismemberment abortions."  The court said, in its 27-page opinion:

... [T]he Act prohibits the performance of an outpatient standard D&E abortion unless fetal demise occurs in utero before the fetus is removed from the woman. It is also undisputed that after approximately 15 weeks of pregnancy and before a fetus is viable, nationwide the most common second-trimester abortion is a standard D&E without inducing in utero fetal demise....

... [T]he State's legitimate interest in fetal life does not allow the imposition of an additional medical procedure on the standard D&E abortion  procedure not driven by medical necessity. Here the State's interest must give way to the woman's right. The Act does more than create a structural mechanism by which the State expresses profound respect for the unborn. The Act intervenes in the medical process of abortion prior to viability in an unduly burdensome manner.

Courthouse News reports on the decision. [Thanks to Scott Mange for the lead.]

Challenge To FEMA Policy On Disaster Aid To Churches Moves Ahead

In Harvest Family Church v. Federal Emergency Management Agency, (SD TX, Nov. 9, 2017), a Texas federal district court refused to grant FEMA a 30-day stay in a suit by three churches challenging FEMA's policy denying disaster aid to houses of worship.  FEMA, which refused defend the merits of its policy before the court, sought the stay because it is reconsidering the policy.  The court said it will delay a ruling on plaintiffs' request for a temporary injunction until December 1.  It added:

The Court has received instructive briefing from amici in support of Plaintiffs’ Motion, for which it expresses gratitude. Nevertheless ... “Without opponents, the adversary system cannot function.”... The Court would therefore welcome amici with differing views.

If, by December 1, FEMA’s position remains unchanged, the Court will assume that FEMA concedes, at the very least, Plaintiffs’ likelihood of success on the merits of this case and that the injury being suffered by Plaintiffs is irreparable. The Court will then issue its ruling on Plaintiffs’ request for preliminary relief.

Texas Engaged In Viewpoint Discrimination In Removal of Bill of Rights Nativity Display

In Freedom From Religion Foundation, Inc. v. Abbott, (WD TX, Oct. 13, 2017), a Texas federal district court held that Texas Governor Greg Abbott and the Texas State Preservation Board violated the free speech rights of Freedom From Religion Foundation when, at the governor's order, FFRF's Bill of Rights nativity display was removed from the state capitol rotunda where it had been erected under a limited public forum policy. (See prior related posting.)  The governor claimed that the display did not serve a "public purpose" because of its mocking and satirical tone.  The court held that whether the exhibit was removed because of its satiric tone or because of its non-theistic point of view, either motive constitutes impermissible viewpoint discrimination.

The court went on to deny summary judgment to defendants on FFRF's Establishment Clause claim because material questions of fact remain as to defendants' purpose in excluding the exhibit.  It rejected the governor's claim of qualified immunity as to the free speech claim, but granted it as to the Establishment Clause claim. Friendly Atheist blog has more on the decision.

Ecclesiastical Abstention Requires Dismissal of Suit Over Student's Forced Withdrawal From High School

In In re the Episcopal School of Dallas, Inc., (TX App, Oct. 11, 2017), a Texas state appellate court held that the ecclesiastical abstention doctrine applies to a faith-based school, even though the school was not owned or operated by a church, saying in part:

[T]he Does cite no authority for the premise that the ecclesiastical abstention doctrine requires a showing that an institution’s “primary purpose” is religion. More importantly, asking this Court to examine and compare the contours of different religions or measure the internal application of Episcopal precepts to the school’s policies or its conduct here seeks to have us engage in the exact analysis the First Amendment precludes. 

It ordered the trial court to dismiss for lack of jurisdiction a suit by a high school student who was forced to withdraw from school because of marijuana use during his lunch hour and his conduct surrounding investigation of the incident.  the court concluded:

The Does’ claims all concern a faith-based organization’s internal affairs, governance, administration, membership, or disciplinary procedures and are protected religious decisions. Thus, the Does’ suit has no secular aspect for the courts to consider.

Cheerleaders Can Move Ahead With Suit Over Religious-Themed Run-Through Banners

In a long-running dispute, a Texas state appeals court in Kountze Independent School District v. Matthews, (TX App, Sept. 28, 2017), held that run-through banners made and used by high school cheerleaders were private speech rather than government or school-sponsored speech. The cheerleaders sued when the school prohibited their placing religious messages on their banners. The court held that the cheerleaders' private speech is protected by the First Amendment and that the state has waived governmental immunity for suits alleging unconstitutional actions. (See prior related posting.)

District Court Nominee's Prior Speeches Create Concern

As previously reported, earlier this month President Trump nominated Texas Assistant Attorney General Jeff Mateer for a federal district court judgeship in Texas.  Mateer was previously general counsel and executive vice president of the First Liberty Institute.  Now, according to Wednesday's San Antonio Express-News, Texas Senator John Cornyn is expressing concern over the nomination after CNN discovered speeches in which Mateer referred to transgender children as part of "Satan’s plan" and defended the use of gay "conversion therapy."

Churches Challenge FEMA's Bar On Disaster Aid To Houses of Worship

This week three Texas churches that suffered significant damage from Hurricane Harvey filed suit against FEMA, challenging its policy that precludes houses of worship from receiving federal disaster assistance aid. The complaint (full text) in Harvest Family Church v. Federal Emergency Management Agency, (SD TX, filed 9/4/2017), relies particularly on the U.S. Supreme Court's recent Trinity Lutheran Church decision in claiming that FEMA's policy unconstitutionally discriminates against churches solely because of their religious status.  Plaintiffs contend:

Were the Churches not religious, their prohibited “worship” services would instead be eligible as “social activities to pursue items of mutual interest”; the impermissible “religious instruction” during religious services would be permissible as “educational enrichment activity”; children’s church and women’s Bible study groups would qualify as a “service or activity intended to serve a specific group of individuals”; and meetings between the clergy and other church leaders would be a “community board meeting.”

Becket issued a press release announcing the filing of the lawsuit.

UPDATE: In a tweet on Friday, President Trump said: "Churches in Texas should be entitled to reimbursement from FEMA Relief Funds for helping victims of Hurricane Harvey (just like others)."

Texas Governor Declares Day of Prayer In Aftermath of Hurricane

In response to Hurricane Harvey and its aftermath, Texas Governor Greg Abbott yesterday issued a Proclamation (full text) declaring Sunday, Sept. 3 as a Day of Prayer in Texas.  The Proclamation reads in part:

I urge Texans of all faiths and religious traditions and backgrounds to offer prayers on that day for the safety of our first responders, public safety officers, and military personnel, healing of individuals, rebuilding of communities and the restoration of the entire region struck by this disaster.

Federal Suit By Houston Employees Seeks To Preserve Benefits For Same-Sex Couples

A suit was filed yesterday in a Texas federal district court by Houston city employees and their same-sex spouses seeking to preserve the same spousal benefits that are received by other city employees. In a decision handed down last month, the Texas Supreme Court kept alive a suit by Houston taxpayers challenging the city's extending spousal benefits to same-sex married couples. (See prior posting.) In the complaint (full text) filed yesterday in Freeman v. Turner, (SD TX, filed 8/10/2017), plaintiffs asked the federal district court to declare that the city may not rely on the Texas DOMA Statute and the Texas Marriage Amendment, which have previously been held unconstitutional by federal courts, to justify depriving city employees with same-sex spouses to to the same spousal benefits extended to other married employees. The complaint also asks the court to find that denial or withdrawal of such benefits would be unconstitutional under the equal protection and due process clauses. Texas Observer reports on the lawsuit.