Court Dismisses Native American Challenge To San Antonio Revitalization Efforts

In Rocha v. City of San Antonio, (WD TX, July 2, 2015), a Texas federal district court rejected a vast variety of statutory and constitutional challenges to San Antonio's redevelopment efforts at several historical sites including the Hemisfair Historical Park, Alamo Plaza, the Alamo and La Villita.  Plaintiff, who claims to be a direct lineal descendant of the Yanaguana tribes, claims that the city is desecrating historical archaeological sites and Native American burial grounds.  Plaintiff's original complaint, dismissed by the court in this decision, alleged that the city was violating the U.S. Constitution, the Native American Graves Protection and Repatriation Act,  the Archaeological Resources Protection Act, the American Indian Religious Freedom Act, the Texas Parks and Wildlife Code, and San Antonio’s Unified Development Code.  The court also refused to permit plaintiff to amend his complaint to add free exercise claims, claims under eleven sections of the Texas Constitution, and under Title II of the federal Civil Rights Act.

Texas AG, Critical of Obergefell, Issues Opinion On Religious Accommodation For Clerks and Judges

Texas Attorney General Ken Paxton issued a strong statement (full text) on Friday criticizing the U.S. Supreme Court's decision on same sex marriage, saying in part:

Today’s ruling by five Justices of the U.S. Supreme Court marks a radical departure from countless generations of societal law and tradition. The impact of this opinion on our society and the familial fabric of our nation will be profound. Far from a victory for anyone, this is instead a dilution of marriage as a societal institution.

What is most disturbing is the extent to which this opinion is yet another assault on the actual text of the U.S. Constitution and the rule of law itself....  The truth is that the debate over the issue of marriage has increasingly devolved into personal and economic aggression against people of faith who have sought to live their lives consistent with their sincerely-held religious beliefs about marriage.

Then on Sunday, Paxton issued an Attorney General's Opiinion (full text) on the right of public officials to assert religious objections to issuing marriage licenses or performing same-sex marriages. His statement (full text) accompanying the issuance of the opinion is a good deal more strident than the full opinion itself.  Paxton's statement says in part:

A ruling by the U.S. Supreme Court is considered the law of the land, but a judge-made edict that is not based in the law or the Constitution diminishes faith in our system of government and the rule of law.

Now hundreds of Texas public officials are seeking guidance on how to implement what amounts to a lawless decision by an activist Court while adhering both to their respective faiths and their responsibility to uphold and defend the U.S. Constitution. Here is where things currently stand:

Pursuant to the Court’s flawed ruling, the U.S. District Court for the Western District of Texas issued an injunction against the enforcement of Texas marriage laws that define marriage as one man and one woman and therefore those laws currently are enjoined from being enforced by county clerks and justices of the peace. There is not, however, a court order in place in Texas to issue any particular license whatsoever – only the flawed direction by the U.S. Supreme Court on Constitutionality and applicable state laws.

Importantly, the reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty

Paxton's opinion itself carefully provides that religious accommodation "may" be permitted:

A county clerk has a statutory right to delegate a duty to a deputy clerk, including theissuance of same-sex marriage licenses that would violate the county clerk's sincerely held religious beliefs. Regarding deputy clerks and other employees, state and federal employment laws allow them to seek reasonable accommodation for a religious objection to issuing same-sex marriage licenses. And under the Religious Freedom Restoration Acts, deputy clerks and other employees may have a claim that forcing the employee to issue same-sex marriage licenses over their religious objections is not the government's least restrictive means of ensuring a marriage license is issued, particularly when available alternatives would not impose an undue burden on the individuals seeking a license.... Importantly, the strength of any claim under employment laws or the Religious Freedom Restoration Acts depends on the particular facts of each case....

Factual situations may arise in which the county clerk seeks to delegate the issuance of same-sex marriage licenses due to a religious objection, but every employee also has a religious objection to participating in same-sex-marriage licensure. In that scenario, were a clerk to issue traditional marriage licenses while refusing to issue same-sex marriage licenses, it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution.

If instead, a county clerk chooses to issue no marriage licenses at all, it raises at least two questions. First, a clerk opting to issue no licenses at all may find himself or herself in tension with the requirement under state law that a clerk "shall" issue marriage licenses to conforming applications.

Moving then to the question of whether judges and justices of the peace may refuse on religious grounds to conduct same-sex marriage ceremonies, Paxton says in part:

Under the Religious Freedom Restoration Acts, justices of the peace and judges may claim that the government forcing them to conduct a same-sex wedding ceremony over their religious objection, when other authorized individuals have no objection, is not the least restrictive means of the government ensuring that the ceremonies occur, assuming that is compelling governmental interest. Again, the strength of any such claim depends on the particular facts.

The Houston Chronicle reports on developments.

Texas Supreme Court: State Lacks Standing To Appeal Trial Court's Grant of Same-Sex Divorce

In a 5-3 decision, the Texas Supreme Court yesterday in State of Texas v. Naylor  (TX Sup. Ct., June 19, 2015), held that the state lacks standing to appeal a divorce decree of sorts that had been granted by a trial court to a lesbian couple.  In the case, the couple had been legally married in Massachusetts, but were now Texas residents.  The trial court recognized the problem of issuing a decree since under Texas law the couple's marriage was not recognized.  Instead it issued an order-- pursuant to an agreement of the parties-- which was "intended to be a substitute for ... a valid and subsisting divorce... and is intended to dispose of all economic issues and liabilities as between the parties whether they [are] divorced or not."  After the order was entered, the state of Texas filed a motion to intervene to defend the Texas law that limits divorce actions to opposite-sex couples who are married to one another.

The Supreme Court's majority opinion by Justice Brown held that the state was too late in attempting to intervene as a party since it did not try to do so until after a decree was entered.  It also held that the state did not show grounds to maintain a third-party appeal of the trial court's decision. Justice Boyd filed a concurring opinion emphasizing that the state is in no way bound by the trial court's decree.

Justice Willett delivered a dissenting opinion (which was joined by Justices Guzman and Devine) concluding:

In my view, the attorney general—constitutionally bound to “represent the State in all suits” has an interest sufficient to intervene to defend Texas law against perceived constitutional attack. His arguments may not prevail, but he should be allowed to make them.

Justice Devine also filed a separate dissent reaching the merits and concluding that the Texas ban on same-sex marriages is constitutional.  Thus, since the parties were not married, the trial court lacked jurisdiction over the divorce action. Dallas Morning News reports on the decision. [Thanks to How Appealing for the lead.]

FFRF Objects To Town Sign Reading "Jesus Welcomes You"

KETK News reports today that Freedom From Religion Foundation has written the Hawkins, Texas City Council objecting to a large sign apparently put up by the city on city land reading "Jesus Welcomes You To Hawkins." FFRF says the sign violates the Establishment Clause, and that even if the city leases out  the land on which the sign sits, this will not cure the violation. Hawkins, located in east Texas, has a population of 1,278.

Texas Passes Bill To Protect Clergy and Religious Groups That Object To Same-Sex Marriage

Anticipating the U.S. Supreme Court's upcoming decision on marriage equality, the Texas legislature last week gave final passage and sent to the governor for his signature S.B. No. 2065 (full text) to protect clergy and religious groups who object to same-sex marriage.  The bill provides:

A religious organization, an organization supervised or controlled by or in connection with a religious organization, an individual employed by a religious organization while acting in the scope of that employment, or a clergy or minister may not be required to solemnize any marriage or provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, or celebration of any marriage if the action would cause the organization or individual to violate a sincerely held religious belief.

It goes on to provide that this shields the organization and individuals against civil or criminal claims or governmental denial of benefits. Last Friday's Dallas Morning News, reporting on the legislature's action, also reported that a separate bill designed to impede issuance of same-sex marriage licenses by county clerks will not move ahead this session.

UPDATE: Gov. Greg Abbott signed SB 2065 on June 11. (Austin Standard-Times).

Texas Judge Disciplined For Religious-Cultural Bias

The Texas State Commission on Judicial Conduct last week issued a Public Admonition (full text) against Texas state trial court judge Carter Tinsley Schildknecht, finding in part that she:

manifested a religious and/or cultural bias by describing District Attorney Munk as a “New York Jew” and by criticizing a prosecutor’s beard because it made him look like a “Muslim.”

Other charges involved a court session that lasted until 4:00 AM without breaks and an order refusing to allow the District Attorney to enter the court room. Besides the admonition, the judge was ordered to complete an additional four hours of education with a mentor on open courts and eliminating bias. Texas Lawyer reports on the Commission's action.

School Board Sued Over Invocation Policy

The American Humanist Association announced yesterday that it has filed a lawsuit against a Texas school district on behalf of a former student challenging the school board's invocation policy.  The complaint (full text) in American Humanist Association v. Birdville Independent School District, (ND TX, filed 5/18/2015) alleges that the school board and its members violate the Establishment Clause by selecting elementary and middle school students, and occasionally high school students, from District schools to deliver prayers as part of the regular School Board meetings. Often the prayers are Christian and make specific reference to Jesus. The suit seeks an injunction and punitive damages.

Supreme Court Hears Oral Arguments On Specialty Plates and Free Speech

The U.S. Supreme Court yesterday heard oral arguments in Walker v. Texas Division, Sons of Confederate Veterans, Inc. (Full transcript of oral arguments).  In the case, the 5th Circuit Court of Appeals held in a 2-1 decision that messages on state specialty license plates are private speech, not government speech.  The 5th Circuit majority also concluded that Texas engaged in unconstitutional viewpoint discrimination when it rejected, as offensive, a specialty plate design that included the Confederate battle flag. (See prior related posting.)  SCOTUSblog reports on the oral arguments, saying in part:

From the moment that a state lawyer stood up in the Supreme Court to argue that messages on license plates are government speech, it seemed that the Justices went forward for the rest of the hour assuming that it was not — at least not always.  A strange hearing thus unfolded on when the First Amendment puts curbs on government regulation of expression, and how tight those curbs can be.

New York Times also reports on the arguments.

Dallas Sues Synagogue For Failing To Obtain Certificate of Occupancy

Last month, a Homeowners Association lost its attempt to enforce deed restrictions barring use of a north Dallas, Texas home by Congregation Toras Chaim, a group of 30 Orthodox Jewish families, for daily prayer services. (See prior posting.)  This week, however, the city of Dallas filed suit against the congregation claiming that it needs to obtain a certificate of occupancy to use the home for non-residential purposes. The complaint (full text) in City of Dallas v. Gothelf, (TX Dist. Ct., filed 3/2/2015), says that the congregation filed an incomplete application for a certificate last year.  It needs to comply with handicap accessibility, fire safety and parking regulations. The synagogue claims it is shielded from compliance by RLUIPA and the Texas Religious Freedom Restoration Act.  According to the Dallas Morning News, the synagogue says there is no way it can afford to make the changes the city has demanded.

Texas Probate Court Holds Same-Sex Marriage Ban Unconstitutional

While the U.S. 5th Circuit Court of Appeals considers whether to hold Texas' same-sex marriage bans unconstitutional (see prior posting), Jurist reports that a Travis County, Texas Probate Court judge in Estate of Powell, (Travis Co. Prob. Ct., Feb. 17, 2015), rather summarily held that Texas Family Code Sec. 2.401 limiting common law marriages to  heterosexual couples is unconstitutional, as are Sec. 6.204(b) and Texas Constitution Art. I, Sec. 32 that invalidate same-sex marriages.  The decision dismissed challenges by other relatives of the deceased, Stella Marie Powell, to a claim by her same-sex partner that she is entitled to Powell's estate.

Religious Freedom Laws Limit Reach of Homeowners Association Rules

A state court judge in Collin County, Texas yesterday ruled that the Texas Religious Freedom Restoration Act and the federal Religious Land Use and Institutionalized Persons Act trump Home Owners' Association rules. According to the Dallas Morning News, a neighbor, joined later by the property owners association, sued to enforce deed restrictions barring use of a north Dallas home by Congregation Toras Chaim, a group of 30 Orthodox Jewish families, for daily prayer services.  Plaintiffs argued unsuccessfully that the state and federal religious freedom statutes apply only to action by governmental entities. [Thanks to Steven H. Sholk for the lead.]

New Islamic Tribunal Is Set Up In Texas

What is perhaps the first Islamic Tribunal in the United States has been set up in Dallas, Texas.  The Tribunal offers to the Muslim community mediation and non-binding arbitration that follows Islamic principles. CBS 11 News reports on the new Tribunal. Breibart last week carried a rather unsympathetic article on the Tribunal

Muslim Texans Face Hostile Reception At State Capitol

Yesterday CAIR Texas sponsored its annual Texas Muslim Capitol Day, featuring sessions on political activism and meetings with state representatives.  According to the Texas Tribune, participants visiting freshman representative Molly White's office received an unusual greeting.  White was back in her district, but she left an Israeli flag on the reception desk in her office and instructed her staff to ask representatives from the Muslim community "to renounce Islamic terrorist groups and publicly announce allegiance to America and our laws." In her Facebook posting announcing this, she added: "We will see how long they stay in my office."

CAIR responded by sending a letter (full text) raising ethics questions to House Speaker Joe Straus, in part asking:

Has Rep. White violated any House rules in creating such an internal office policy that is selectively being enforced to discriminate against certain religious minorities trying to meet with her or her staff? Are House members prohibited from making constituents take oaths before meeting with their elected representatives or house staff?

Yesterday afternoon White issued a statement backing off somewhat from her earlier comments.

Protesters also interrupted the Muslim group's press conference at the Capitol yesterday. One grabbed the microphone and screamed: "Islam will never dominate the United States and by the grace of God, it will never dominate Texas."  More than 420,000 Muslims live in Texas. [Thanks to Scott Mange for the lead.]

Challenge To Catholic School's Entrance Requirements Dismissed Under Ecclesiastical Abstention Doctrine

In In re Vida, (TX App., Jan. 7, 2015), a Texas state appeals court held that under the ecclesiastical abstention doctrine, a trial court must dismiss for lack of jurisdiction a suit by parents of a Catholic school kindergartner against the school superintendent.  The suit alleging negligence, tortious interference with contract and conspiracy was filed after the school refused to admit the student to first grade because she failed to meet the 6-year old age requirement.  The court said:

Just as the courts cannot question the admission requirements for Catholic churches, they also do not have jurisdiction to consider a claim arising from the admission requirements for Catholic schools which “are subject to the authority of the Church” under Canon Law.

5th Circuit Hears Oral Arguments In 3 Same-Sex Marriage Cases

Yesterday, the U.S. Fifth Circuit Court of Appeals heard oral arguments in three same-sex marriage cases.  The cases argued were Robicheaux v. Caldwell, in which a district court upheld Louisiana's ban (see prior posting) (audio recording of full oral arguments); DeLeon v. Perry, in which a district court struck down the Texas bans (see prior posting) (audio recording of full oral arguments); and Campaign for Southern Equality v. Bryant, in which a district court found Mississippi's ban unconstitutional (see prior posting) (audio recording of full oral arguments). The Washington Times reports that supporters of marriage equality were encouraged by the questions from two of the three judges on the panel.

Dallas Eases Restrictions On Feeding of Homeless; Settles Lawsuit

Last year, a Texas federal district court held that Dallas'  Food Establishment Ordinance imposing strict requirements on organizations feeding the homeless violates the Texas Religious Freedom Restoration Act. (See prior posting.) On Wednesday Dallas City Council, as part of a  settlement of the lawsuit, adopted amendments lightening the burdens on those feeding the homeless.  As reported by Think Progress:

The original Dallas ordinance required charities that wished to feed the homeless to provide bathrooms and running water, effectively restricting the groups to a handful of sites rather than allowing them to go to where the need was greatest. It also required them to register with the city no matter how large or small their food program might be, with the threat of a $2,000 fine for violators.....

Instead of running water and hand-washing facilities, street feeding programs may now use hand sanitizer. They only need to notify the city if they plan to serve more than 75 people, and must abide by some basic food safety guidelines.

According to the Dallas Morning News, the city also voted to pay a total of $250,000 for damages and attorneys fees to to Big Hart Ministries Association and Rip Parker Memorial Homeless Ministry.

Supreme Court Will Review 5th Circuit Decision On Specialty License Plates

As reported by SCOTUS blog, yesterday the U.S. Supreme Court granted certiorari in Walker v. Sons of Confederate Veterans, (Docket No. 14-144, cert. granted 12/5/2014). (Order List). In the case, the 5th Circuit Court of Appeals held in a 2-1 decision that messages on state specialty license plates are private speech, not government speech.  The majority also concluded that the Texas Department of Motor Vehicles Board engaged in unconstitutional viewpoint discrimination when it rejected a specialty plate design that included the Confederate battle flag. Texas rejected the design because many members of the public found it offensive.  (See prior posting.) The petition for certiorari focused on two issues-- whether messages and images on specialty plates are government speech; and whether denial of a plate can involve viewpoint discrimination if the state never issued a plate expressing a different message on the same subject.

Reporting on the Court's grant of cert., the Washington Post points out that the Court still has before it a petition for certiorari in ACLU v. Tata involving North Carolina's authorization of a "Choose Life" specialty plate while it refused to issue a pro-choice plate. (See prior posting.)

5th Circuit Stays Execution of Man Who Believes His Sentence Is A Satanic Plot

On Wednesday, the U.S. 5th Circuit Court of Appeals stayed the execution of Scott Panetti in order to "fully consider the late arriving and complex legal questions at issue...." (Full text of court's decision.) As reported by Newsweek, Panetti (who was convicted of murdering the parents of his second wife) suffers from  schizophrenia, and his case brings back the question of when it is constitutionally permissible to execute someone who is mentally ill. (Background.)  According to Texas Defender Service, Panetti (acting without a defense lawyer) attempted at his trial to subpoena the Pope, John F. Kennedy, and Jesus.  He believes that his execution is being orchestrated by Satan, working through the State of Texas, to end his preaching the Gospel to condemned prisoners.

Florida and Texas Churches Successfully Challenge Zoning Denials

This week, churches in Florida and Texas were successful in their RLUIPA challenges to zoning denials.

In Church of Our Savior v. City of Jacksonville, (MD FL, Nov. 25, 2014), a church prevailed on its RLUIPA "as applied" equal terms challenge to Jacksonville, Florida's denial of a conditional use permit. A Florida federal district court found that the city granted a permit to a Montessori school to operate in a residentially zoned area, while denying it to the church, thereby creating less than equal treatment.  The court went on to hold that the city had not shown that its two denials of conditional use permit applications were narrowly tailored to further compelling interests.  The court held that the city's actions did not violate various other provisions of RLUIPA, including RLUIPA's "substantial burden" provisions. [Thanks to Dan Dalton for the lead.]

In Cornerstone Church By the Bay v. Town of Bayview, (SD TX, Nov. 24, 2014), a Texas federal district court a preliminary injunction agreed to by both parties that apparently envisions that the town will grant a special use variance to allow a congregation to operate a church and school on property it owns in an area zoned residential. The injunction prevents the town from enforcing the zoning ordinance or interfering with the church's operation while the church applies for the required permits. Liberty Institute reports on the court's action and provides further background and links to the pleadings.

Houston Withdraws Controversial Subpoenas Issued To Pastors

Houston (TX) Mayor Annnise Parker announced yesterday the complete withdrawal of subpoenas the city had issued to 5 pastors seeking information about their support of a petition drive to obtain a referendum on the city's recently enacted Equal Rights Ordinance. (See prior posting.) According to Click2 Houston, while announcing withdrawal of the subpoenas, the mayor said that the city will continue to defend the ordinance against repeal efforts.  The mayor's decision comes one day after pastors from across the country came to Houston to protest, and people across the country mailed more than 1000 Bibles to the mayor as a protest.