New Texas Law Protects Religious Organizations During Future Emergencies

On June 18, Texas Governor Greg Abbott signed HB 525 (full text) which prohibits the state from restricting activities of religious organizations during a state of emergency. It provides in part:

(a) Notwithstanding any other law, a religious organization is an essential business at all times in this state, including during a declared state of disaster, and the organization ’s religious and other related activities are essential activities even if the activities are not listed as essential in an order issued during the disaster.

(b) A governmental entity may not: (1)At any time, including during a declared state of disaster, prohibit a religious organization from engaging in religious and other related activities or continuing to operate in the discharge of the organization ’s foundational faith-based mission and purpose; or

(2) during a declared state of disaster order a religious organization to close or otherwise alter the organization ’s purposes or activities.

The Texan reports on the new law.

Challenge To "Sanctuary City for Unborn" Dismissed On Standing And Abstention Grounds

In Planned Parenthood of Greater Texas Surgical Health Services v. City of Lubbock, (ND TX, June 1, 2021), a Texas federal district court dismissed on standing and Pullman abstention grounds a pre-enforcement challenge to a Lubbock, Texas ordinance declaring the city a "sanctuary city for the unborn." The ordinance includes a private enforcement provision that comes into effect only upon certain future events, such as the overruling of Roe v. Wade. The court said in part:

 Although the Court assumes that plaintiffs can show injury that stems from the city's passage of the ordinance's private-enforcement provision, they fail to show that an order from the Court would redress the injury. Plaintiffs admit that this Court cannot force the city to revoke or amend its ordinance.... They also concede that any order from this Court regarding the ordinance's constitutionality or validity would not bind the state courts that would hear the private-enforcement suits.... Instead, plaintiffs claim that a declaration of invalidity from the Court may deter lawsuits and may help convince state courts of plaintiffs' arguments.... But this potential relief is too speculative to show, as they must, that the Court's order would likely redress their injury....

"[U]nder the Pullman doctrine, a federal court should abstain from exercising its jurisdiction 'when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided.'"...

Therefore, even if the Court had jurisdiction, the Court would dismiss the case without prejudice so that the state courts could resolve whether Texas law prohibits cities from enacting private rights of action or whether state law preempts any component of the ordinance.

Deacon's Defamation Suit Against Diocese Dismissed Under Ecclesiastical Abstention Doctrine

In In re Diocese of Lubbock, (TX Sup. Ct., June 11, 2021), the Texas Supreme Court in a 7-1 decision, held that the ecclesiastical abstention doctrine requires the trial court to dismiss an action for defamation and intentional infliction of emotional distress brought by against the Diocese of Lubbock by one of its ordained deacons. The deacon's name was included on a published list of those against whom credible allegations of sexual abuse of a minor have been raised. The deacon contended that he was wrongly included on the list because the person accusing him was not a minor. The court said in part:

[T]he Diocese ... based the scope of its investigation on the canonical meaning of minor: “a person who habitually lacks the use of reason,” which includes “vulnerable adults.” Thus, a court would have to evaluate whether the Diocese had credible allegations against Guerrero under the canonical meaning of “minor.” This would necessarily entail a secular investigation into the Diocese’s understanding of the term “minor,” whether a court agrees that the woman he allegedly sexually abused qualifies as a “minor” under Canon Law, and whether the allegations it possesses were sufficiently “credible.” ...

This inquiry would not only cause a court to evaluate whether the Diocese properly applied Canon Law but would also permit the same court to interlineate its own views of a Canonical term. Indeed, any investigation would necessarily put to question the internal decision making of a church judicatory body.

Justice Blacklock filed a concurring opinion. Justice Boyd filed a lengthy dissenting opinion. The briefs and oral arguments in the case are available online.

In a companion case in a per curiam order in Diocese of Lubbock v. Guerrero,(TX Sup. Ct., June 11, 2021), the court vacated and dismissed a trial court order in a suit invoking the Texas Citizens Participation Act.

FFRF Wins Right To Display "Bill of Rights Nativity Scene"

In Freedom from Religion Foundation v. Abbott, 2021 U.S. Dist. LEXIS 104950 (WD TX, May 5, 2021), on remand from the 5th Circuit, a Texas federal district court issued a declaratory judgment and an injunction barring state officials from excluding FFRF's "Bill of Rights Nativity Exhibit" from display space in the state capitol building under now-revised rules. The court said in part:

Defendants violate the Foundation's First Amendment rights and engage in viewpoint discrimination as a matter of law when they exclude the Foundation's Exhibit based on the perceived offensiveness of its message.

The court however rejected plaintiff's claim that the state has unconstitutional unbridled discretion under the current rules.

Opening Of Court Sessions With Prayer Violates Establishment Clause

In Freedom From Religion Foundation, Inc. v. Mack, (SD TX, May 21, 2021), a Texas federal district court held that a program devised by a Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain violates the Establishment Clause. The court concluded that attendees are impermissibly coerced into participating in religious ritual. It said in part:

The structure of the ceremony, combined with the defendant’s attendant statements about the ceremony’s purpose, is designed to give attendees “a sense of being in the presence of something . . . holy and sacred[.]” ... The Court is of the view that the defendant violates the Establishment Clause when, before a captured audience of litigants and their counsel, he presents himself as theopneustically-inspired, enabling him to advance, through the Chaplaincy Program, God’s “larger purpose.” Such a magnanimous goal flies in the face of historical tradition, and makes a mockery of both, religion and law.

FFRF issued a press release announcing the decision. First Liberty Institute which represents defendant says that it will appeal the decision to the 5th Circuit.

Suspended Priest's Age Discrimination Claim Dismissed Under Ecclesiastical Abstention Doctrine

In In re Roman Catholic Diocese of El Paso, (TX App., May 17, 2021), a Texas appellate court by a vote of 2-1 held that under the ecclesiastical abstention doctrine, Texas civil courts lack jurisdiction over an age discrimination and fraud case brought by a Catholic priest against his diocese.  The suit was brought when the diocese reduced payments being made to the priest who was placed on administrative leave after criminal allegations were lodged against him. The majority said in part:

The Diocese contends in this mandamus that a civil court cannot adjudicate whether Bishop Seitz exercised his discretion to reduce Olivas’s payment of decent support in a reasonable manner without inextricably involving itself in the governance of the Catholic Church. We agree and conclude that for both of the asserted claims in this case, that the fact finder would have to judge the stated rationale of Bishop Seitz’s reduction of payments which is grounded under the church’s canon law.

Chief Justice Rodriguez dissented on several grounds. He said in part:

I believe that employment discrimination laws such as the age discrimination provision of Texas Commission on Human Rights Act ... may be constitutionally enforced against religious entity employers, provided that the employee bringing the claim is not one of the defendant’s “ministers.”...

[T]he wrinkle in this case is that while Olivas retains the title of priest, he is by the Church’s own assessment a priest in name only. Seitz admitted that Olivas does not and cannot perform any ministerial duties for the Diocese due to Olivas’ suspension of faculties.

Texas Passes Heartbeat Abortion Law With Broad Civil Enforcement Provision

Today the Texas legislature sent to Governor Greg Abbott for his signature SB8 (full text), the state's version of a "heartbeat" abortion law. Except in medical emergencies, it bans performing or inducing an abortion if the physician has detected a fetal heartbeat. Unique to the Texas law is a provision that allows any private person to bring a civil action against a physician who has violated the statute, and against anyone who knowingly aids or abets the abortion, including reimbursing the costs of an abortion through insurance, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of the statute. However, no action may be brought against the woman on whom the abortion was performed. Plaintiff may recover statutory damages of not less than $10,000 for each abortion the defendant has been involved in. Daily Beast reports on the new statute. [Thanks to Scott Mange for the lead.]

Supreme Court Refuses Original Suit By Texas Against California

Yesterday, the U.S. Supreme Court in Texas v. California, (Sup. Ct., April 26, 2021), (SCOTUSblog case page) denied the state of Texas leave to invoke the Supreme Court's original jurisdiction to file a bill of complaint against the state of California. USA Today described the background:

California passed a law in 2016 prohibiting taxpayer-funded travel – such as for state employees to attend conferences – to any state that doesn’t ban discrimination on the basis of sexual orientation. Texas law allows foster-care and adoption agencies to deny same-sex couples on religious grounds.

Texas took California directly to the Supreme Court last year, asserting the travel ban was "born of religious animus" and that it violates the Constitution....

The justices had been considering whether to take the suit for months. The court did not explain its decision not to hear the case.

Justice Alito, joined by Justice Thomas, dissented, saying in part:

The practice of refusing to permit the filing of a complaint in cases that fall within our original jurisdiction is questionable, and that is especially true when, as in this case, our original jurisdictional is exclusive. As the history recounted above reveals, the Court adopted this practice without ever providing a convincing justification....

Texas raises novel constitutional claims, arguing that California’s travel ban violates the Privileges and Immunities Clause, U. S. Const., Art. IV, §2, cl. 1, the Commerce Clause, Art. I, §8, cl. 3, and the Equal Protection Clause, Amdt. 14, §1. I express no view regarding any of those claims, but I respectfully dissent from the Court’s refusal even to permit the filing of Texas’s complaint.

Texas Will Now Allow Spiritual Advisor In Execution Chamber With Prisoner

 AP and Texas Tribune report that Texas prisons will now allow any inmate being executed to have his personal religious adviser with him in the execution chamber so long as the adviser is verified and passes a background check. This change in policy follows the U.S. Supreme Court's questioning of earlier Texas policies which first limited inmates to having the prison's Christian chaplain and then excluded all spiritual advisors. (See prior posting.) The policy change was signed on Wednesday by director of the Correctional Institutions Division of the Texas Department of Criminal Justice. [Thanks to Scott Mange for the lead.]

Suit Claims Enforcement of Deed Restriction Against Synagogue Violates Religious Exercise Rights

Suit was filed late last month in a Texas federal district court against the City of Houston seeking to block it from enforcing a deed restriction against a small Orthodox synagogue that meets in a house zoned only for residential use.  The complaint (full text) in TORCH (Torah Outreach Resource Center of Houston) v. City of Houston, Texas, (SD TX, filed 3/25/2021), alleges that the city's selective enforcement of the deed restriction violates RLUIPA, the Texas Religious Freedom Restoration Act, and the federal Fair Housing Act. First Liberty Institute issued a press release announcing the filing of the lawsuit.

UPDATE: An April 20 announcement by First Liberty indicates that the case has been settled, with the City of Houston agreeing not to enforce deed restrictions against the synagogue and to dismiss citations it has already issued.

Texas Human Rights Act Bars LGBT Discrimination

In Tarrant County College District v. Sims, (TX App., March 10, 2021), a Texas state appellate court, in a 2-1 decision, held that the Texas Commission on Human Rights Act (TCHRA) should be read to prohibit discrimination on the basis of sexual orientation or gender identity. In the case, plaintiff, a community college employee, claimed that the college discriminated against her because she is a lesbian. The majority said in part:

In order to reconcile and conform the TCHRA with federal antidiscrimination and retaliation laws under Title VII, we conclude we must follow Bostock and read the TCHRA’s prohibition on discrimination “because of . . . sex” as prohibiting discrimination based on an individual’s status as a homosexual or transgender person. See Bostock, 140 S. Ct. at 1738–43; Chatha, 381 S.W.3d at 504–05.

The majority also refused to dismiss plaintiff's claims under the Texas constitution. 

Justice Schenck filed an opinion dissenting in part, contending that Bostock does not control the interpretation of the state anti-discrimination statute. Human Rights Campaign issued a press release on the decision.

Satanic Temple Member Sues Over Texas Abortion Requirements

The Satanic Temple and one of its members filed suit last month in a Texas federal district court challenging Texas' requirement that a woman have a sonogram prior to an abortion.  The complaint (full text) in The Satanic Temple, Inc. v. Texas Department of State Health Services, (SD TX, filed 2/12/2021), alleges that the individual plaintiff wishes to engage in The Satanic Temple's Abortion Ritual, explaining:

46. TST developed the Satanic Abortion Ritual to help its membership cast off guilt, shame, and mental discomfort that the member may be experiencing in connection with their election to abort the pregnancy....

47. The Ritual also confirms the member’s choice and wards off effects of unjust persecution....

48. Here, the unjust persecution is an improper effort of the State (the “outside world”) to infringe on the decision-making of a member about her own health decision (the “inside world.”)...

102. Texas places barriers between Ms. Doe (and TST’s similarly situated members) and this religious speech and conduct by first requiring she undergo a medically unnecessary operation, requiring she reject the “opportunity” to see the results of the imaging, requiring she listen to the narrative of and results of the imaging, and requiring she wait.

Plaintiffs claim that the regulations violate their free exercise, substantive due process and equal protection rights. Christian Headlines reports on the lawsuit.

Humanist Organization Lacks Standing To Challenge Texas Ban On Secular Marriage Celebrants

 In Center for Inquiry, Inc. v. Warren, (5th Cir., Feb. 10, 2021), the U.S. 5th Circuit Court of Appeals dismissed for lack of standing a suit by a secular humanist organization challenging as an Establishment Clause violation Texas law that refuses to allow secular celebrants to conduct marriage ceremonies. The court held that plaintiffs are asking for relief that does not remedy their injury in full, explaining:

The appellants are seeking relief that would essentially compel ... [the] Dallas County Clerk, to record marriages conducted by secular celebrants such as themselves. However, even if such relief were hypothetically granted, it would not fully redress the injuries for which the appellants bring suit. Here, the appellants’ injuries relate to the barrier to legally solemnize marriages. But even if they prevail in this litigation, relief would be incomplete because the appellants would still be subject to criminal prosecution. In other words, the barrier to legally solemnizing marriages would nevertheless remain.

Supreme Court GVRs Chaplain-In-Execution-Chamber Case

Yesterday, the U.S. Supreme Court, in a dispute over execution procedures, granted review, vacated the judgment below and remanded the case in Gutierrez v. Saenz (Docket No. 19-8695, GVR 1/25/2021). (Order List.) The case challenges Texas' exclusion of chaplains from the execution chamber.  In June, 2020, a day before appellant's scheduled execution, the Supreme Court granted a stay of execution pending its decision on whether to grant review. (See prior posting.) As part of that order, the Supreme Court instructed the district court to  promptly determine whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution. Apparently the Texas federal district court made additional findings of fact in Nov. 2020. Yesterday, the U.S. Supreme Court granted certiorari and vacated the 5th Circuit's earlier rejection of the trial court's stay of execution. Yesterday's Supreme Court Order went on to provide:

The case is remanded to the Court of Appeals with instructions to remand the case to the District Court for further and prompt consideration of the merits of petitioner’s underlying claims regarding the presence of a spiritual advisor in the execution chamber in light of the District Court’s November 24, 2020 findings of fact. Although this Court’s stay of execution shall terminate upon the sending down of the judgment of this Court, the disposition of the petition for a writ of certiorari is without prejudice to a renewed application regarding a stay of execution should petitioner’s execution be rescheduled before resolution of his claims regarding the presence of a spiritual advisor in the execution chamber.

Austin American-Statesman reports on the decision.

Supreme Court Dismisses and Vacates Judgment Below In Temporary Texas Abortion Ban Controversy

The U.S. Supreme Court today granted certiorari in Planned Parenthood v. Abbott, (Docket No. 20-305, Jan. 25, 2021) (Order List), summarily vacated the judgment below and remanded the case to the 5th Circuit with instructions to dismiss the case as moot. The case began as a challenge to Texas Gov. Greg Abbott's order temporarily barring most elective abortions during the COVID-19 crisis. Subsequently the Governor permitted abortion services to resume. At issue in the case now was whether the Supreme Court would vacate the Court of Appeals judgments below so that they would no longer serve as precedent in other cases. (See petition for certiorari.) The SCOTUSblog case page has links to all the pleadings in the case.

5th Circuit En Banc Hears Oral Arguments On Texas Abortion Restrictions

Yesterday the U.S. 5th Circuit Court of Appeals sitting en banc heard oral arguments in Whole Women's Health v. Paxton. (Audio of full oral arguments). The full court is rehearing the case after a 3-judge panel last October by a 2-1 vote (full text of panel majority decision) held unconstitutional a Texas statute that requires women to undergo a medically unnecessary procedure to cause fetal demise before obtaining a dilation and evacuation (D&E) abortion. Courthouse News Service reports on the oral arguments.

Texas Supreme Court Hears Oral Arguments In Ecclesiastical Abstention Case

The Texas Supreme Court yesterday heard oral arguments in Diocese of Lubbock v. Guerrero, consolidated for argument with In Re Diocese of Lubbock. (Video of oral arguments.) The court's website describes the case:

In this defamation case by a deacon among a list of clergy published on the church website and in a press release, the issues are (1) whether the ecclesiastical-abstention doctrine bars the libel claim when a church internally decides to disclose inside information to the public at large and (2) whether Guerrero, the deacon, presented clear and specific evidence establishing a prima facie case of each element of his defamation claim.

Links to the pleadings and briefs in the cases can be found here and here. Courthouse News Service reports on the oral arguments.

Sign Ordinance Invoked Against Abortion Protesters Is Unconstiutional

In Baker v. City of Fort Worth, (ND TX, Dec. 8, 2020), a Texas federal district court held that Fort Worth's sign ordinance is facially unconstitutional as a content-based prior restraint on speech.  The suit was brought by two plaintiffs who were cited for placing 18-inch crosses on a public right-of-way in front of an abortion clinic. The city ordinances require city council approval in order to display signs on public property, except for political signs at election polling locations.

Factional Dispute In Church Is Dismissed

 In St. John Missionary Baptist Church v. Flakes, (TX App., Nov. 30, 2020), a Texas state appeals court affirmed the dismissal, on ecclesiastical abstention grounds, of a suit between two factions of a church. One faction attempted to remove the pastor through a church meeting. The pastor refused to step down and the other faction continued to pay him. In dismissing the suit, the court said in part:

Texas courts have consistently held that the relationship between an organized church and its ministers is its lifeblood, and matters concerning this relationship must be recognized as of prime ecclesiastical concern.

The court similarly held that the questions of whether members excommunicated by one faction could enter the church and whether they could vote on sale of church property were also covered by the ecclesiastical abstention doctrine. 

5th Circuit En Banc Holds Medicaid Patients Cannot Challenge Planned Parenthood Defunding

In a procedurally complex holding, the U.S. 5th Circuit Court of Appeals en banc in Planned Parenthood of Greater Texas Family Planning and Preventive Health Services, Inc. v. Kauffman, (5th Cir., Nov. 23, 2020), vacated a preliminary injunction that had prevented Texas from terminating its Medicaid contracts with Planned Parenthood. Eleven of the 16 judges joined the majority opinion in full.  Three others joined it in part. Two dissented. The termination was prompted by a controversial video from a pro-life organization involving procurement of fetal tissue for research. In vacating the injunction, the majority said in part:

[T]he district court grant[ed] the Providers and Individual Plaintiffs’ [who were Medicaid patients] motion for a preliminary injunction and prohibit[ed] the termination of the Providers’ Medicaid provider agreements. The district court held that § 1396a(a)(23) granted rights to the Individual Plaintiffs upon which a § 1983 action challenging the OIG’s termination decision could be based. The district court concluded ... [that] the OIG “did not have prima facie . . . evidence, or even a scintilla of evidence, to conclude the bases of termination set forth in the Final Notice merited finding the . . . Providers were not qualified.” This appeal ensued.

A three-judge panel of this court held ... that the Individual Plaintiffs [Medicaid patients] could maintain a § 1983 suit.... We granted en banc review.

The preliminary injunction issued by the district court was based solely on the claims of the Individual Plaintiffs. The district court did not consider whether the Providers were entitled to a preliminary injunction. The question before us is whether the Individual Plaintiffs may bring a § 1983 suit to contest the State’s determination that the Providers were not “qualified” providers.... We hold that they may not. We accordingly vacate the preliminary injunction.

Because the district court did consider the Providers’ claims, no aspect of those claims is before us in this interlocutory appeal. Accordingly, we do not reach an issue addressed by JUDGE HIGGINSON’s opinion concurring in part and dissenting in part, which is whether the Medicaid agreements of entities affiliated with PP Gulf Coast were properly terminated.

UPDATE: Law & Crime reports on the decision.