Burdensome Water Rates On Churches Challenged In Lawsuit

A suit was filed in a Texas state trial court this week challenging a Magnolia, Texas ordinance imposing disproportionately higher water rates on non-profit institutions, including churches. The higher rates were intended to make up for the city's inability under state law to collect property taxes from non-profit institutions. The complaint (full text) in Magnolia Bible Church v. City of Magnolia, (Montgomery Cty. Dist. Ct., filed 5/14/2019), contends that the city's actions violate state law, including the Texas Religious Freedom Restoration Act:

The Institutional Water Rate is void for three independent reasons. First, the Institutional Water Rate is a thinly veiled property tax on a tax-exempt entity, and, as such, it is preempted by state law. Second, even were the Institutional Water Rate not a tax, it would nonetheless be void as a discriminatory, arbitrary utility rate. Finally, by nearly tripling the Churches’ water bills (a substantial burden on free exercise of religion) simply because the Churches do not pay property taxes (an irrational, non-tailored justification), the Institutional Water Rate violates the TRFRA.

First Liberty issued a press release announcing the filing of the lawsuit.

Town Says It Will Keep Crosses On Courthouse

LifeSite News reported yesterday on the latest controversy over crosses on pubic property.  Freedom From Religion Foundation has complained to authorities over the four crosses on the courthouse in the small town of Coldspring, Texas. Last week, the County Commissioners Court voted unanimously to keep the crosses after a three-hour public comment period attended two-thirds of the town's 900 population. Now officials are illuminating the crosses at night to support the decision.

Defamation Suit Dismissed Under Ecclesiastical Abstention Doctrine

In In re Alief Vietnamese Alliance Church and Phan Phung Hung, (TX App., April 30, 2019), a Texas state appellate court held that a defamation claim by a church's former interim pastor, Paul Nguyen, against the Church and its senior pastor Phan Phung Hung should be dismissed under the ecclesiastical abstention doctrine.  At issue were statements by Hung that Nguyen had committed adultery with a female church member. In a 2-1 decision, the majority said in part:

We conclude that Hung's allegedly defamatory statements are ... "inextricably intertwined" with matters relating to an internal struggle between a current and former leader of the Church over Church governance, the standard of morals required of leaders of the Church, and the reason for Nguyen's leaving or being expelled from the Church....

Even if there is a dispute over Hung's motivation in making the statements—either as part of a disciplinary procedure due to the alleged adultery or merely out of vindictiveness towards Nguyen, who had criticized Hung's pastoring decisions—these statements were made in the context of expelling a member and former leader of the Church, or, alternatively, the Church member's voluntarily quitting his leadership positions and quitting the Church—and then refusing to meet with Church leadership to resolve the dispute—either version of which is inherently an ecclesiastical concern as a matter of law.

Judge Landau filed a dissenting opinion.

Following SCOTUS, Texas Says No Chaplains In Execution Chamber

In response to last week's U.S. Supreme Court decision in Murphy v. Collier (see prior posting), the Texas Department of Criminal Justice has changed its execution protocol.  According to UPI, under the new rules only security personnel may be in the execution chamber while an inmate's execution is carried out.  No chaplains are permitted.  Official prison chaplains will be available to inmates until they are taken to the execution chamber.  Any spiritual adviser will be able to observe the execution from the witness room. Justice Kavanaugh's opinion last week indicated that this would be one permissible option to avoid denominational discrimination.

Churches Withdraw Suit Against Austin's Non-Discrimination Ordinance.

Last week, plaintiffs in U.S Pastor Council v. City of Austin, (WD TX, March 19, 2019) filed a Notice of Dismissal of their lawsuit challenging Austin's anti-discrimination ordinance protecting against employment discrimination on the basis of sexual orientation or gender identity. Plaintiffs argued that the ordinance infringes the rights of churches that will not hire women as senior pastors, or practicing homosexuals or transgendered individuals for any church position (See prior posting.) As reported by the Austin Statesman, the city had argued urged dismissal of the suit on standing and other grounds. (Motion to dismiss.)

Cert. Denied In Attempt To Subpoena Bishops' Documents

The U.S. Supreme Court today denied review in Whole Woman's Health v. Texas Catholic Conference of Bishops, (Docket No. 18-622, certiorari denied 2/19/2019) (Order List).  In the case, the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, held that a Texas federal district court should have quashed a document discovery order in a case in which several health care providers challenged the state's fetal remains regulations. (See prior posting). While discussing the Bishops' constitutional claim that internal deliberations of religious organizations should be protected, the 5th Circuit ultimately relied on  Federal Rules of Civil Procedure 45(d) which calls for quashing a subpoena when it imposes an undue burden. Becket issued a press release discussing the Supreme Court's denial of certiorari.

Victims of Mass Church Shooting Can Sue Seller of Weapon

AP reports that a Texas state trial court judge has ruled that the victims of a 2017 mass shooting in a Sutherland Springs (TX) church can move ahead with a lawsuit against the sporting goods store where the gunman purchased his assault rifle and ammunition. The First Baptist Church shooting by Devin Kelly killed 26 and injured 20 others.

Texas County Republicans Keep Muslim Doctor As Vice Chairman

Texas Tribune reports that the precinct chairs of the Tarrant County, Texas Republican Party last night rejected by a vote of 139-49 an attempt to remove trauma surgeon Shahid Shafi as vice-chairman of the county Republican Party. A small faction had attempted to remove Shafi because he is a Muslim.  They argued that he did not represent all Tarrant County Republicans because he is a Muslim, and that Islamic ideologies are opposed to the U.S. Constitution.  A former county precinct chair had sat outside the meeting wearing a burqa which, she said, represented "the Islamization of our county, our state and our country."  Shafi's defenders say the vote for religious liberty.

Establishment Clause Challenge To Drag Queen Storytime Dismissed

In Christopher v. Lawson, (SD TX, Jan. 3, 2018), a Texas federal district court dismissed a lawsuit that claimed the Houston Public Library's "Drag Queen Storytime" violates the Establishment Clause. Plaintiffs claimed that the program promotes secular humanism over other religions, including Christianity,  The court first held that plaintiffs lack standing. Because they avoided the event to protect their children, they suffered no harm.  The court held that they also lack taxpayer standing.  The court went on to find that even if plaintiffs had standing, they failed to show an Establishment Clause violation, saying in part:

Here, the plaintiffs argue that “Drag Queen Storytime” is a religious event because of an alleged connection between “Drag Queen Storytime,” the LGBTQ community, and secular humanism.... [E]ven accepting that secular humanism could be a religion for Establishment Clause purposes, the plaintiffs fail to allege any facts or basis showing that “Drag Queen Storytime” is a religious activity. There is no allegation that a reader discussed secular humanism at the event, or that any story the Library selected invoked secular humanism or any religion at all. The plaintiffs instead make only conclusory statements associating secular humanism with the event.

Houston Chronicle reports on the decision,

Court Refuses To Dismiss Suit Over Parents' Religious Promise

In Gonzales v. Mathis Independent School District, (SD TX, Dec. 27, 2018), a Texas federal district court refused to dismiss a claim under the Texas Religious Freedom Restoration Act by parents of school children who were unable to participate in interscholastic extra-curricular activities because of their violation of grooming standards..  The facts at issue are summarized by the court:

Parents are Hispanic and practice the Roman Catholic religion. As an expression or exercise of their faith and heritage, and in a promise (promesa) to God, Parents have kept a strand of hair on the back of the Children’s heads uncut since birth. More recently,the Children have adopted that promise as their own affirmation of faith and heritage and continue to maintain the single long braid down their backs. However, Parents admit that the promise is not dictated by the Catholic religion and they could change it at any time.

[Thanks to Eugene Volokh via Religionlaw for the lead.] 

Texas BDS Law Challenged

A suit was filed in a Texas federal district court this week by an Arabic-speaking speech pathologist challenging the constitutionality of Texas' statute barring those who contract with the state from participating in any boycott of Israel.  The complaint (full text) in Amawi v. Pflugerville Independent School District, (WD TX, filed 12/16/2018), contends that the anti-BDS law violates the free expression rights of plaintiff who refused on moral grounds to sign an anti-BDS pledge as part of her contract with the school system. Common Dreams reports on the lawsuit.

Challenge Filed To Texas' Limits On Marriage Celebrants

A suit was filed last week in a Texas federal district court challenging the constitutionality of Texas Family Code Section 2.202 which limits those who can officiate at marriage ceremonies to members of the clergy and various judges.  The complaint (full text) in Center for Inquiry, Inc. v. Warren, (ND TX, filed 11/5/2018) contends that the failure to allow secular celebrants to perform marriage ceremonies violates the Establishment Clause, the Equal Protection clause and Art. VI's ban on religious tests. Center for Inquiry issued a press release announcing the filing of the lawsuit.

Suit Against Drag Queen Story Hour Dismissed

Last Friday a suit was filed in federal district court in Houston, Texas seeking to stop a city sponsored drag queen story hour that is scheduled for the Houston Public Library. Plaintiffs argued that the story hour violates their religious free exercise. (Houston Chronicle). Yesterday the court dismissed the suit in a four-sentence order, concluding that there is no basis for the requested relief. (Houston Chronicle).

Second Broad Challenge To Austin's Anti- Discrimination Ordinances Filed

Following a federal court lawsuit filed last week by churches challenging Austin, Texas' ban on employment discrimination (see prior posting), a broader lawsuit has been filed in state court challenging the application of Austin's public accommodation, housing and employment discrimination ordinances to any individual or business that has religious objections to homosexual or transgender behavior.  The complaint (full text) in Texas Values v. City of Austin, (TX Dist. Ct., filed 10/8/2018) asks the court to declare that the ordinances violate Texas Religious Freedom Restoration Act and the Texas Constitution

to the extent that they: (a) prohibit individuals and entities from refusing to hire or retain practicing homosexuals or transgendered people as employees for reasons based in sincere religious belief; (b) prohibit individuals and entities from refusing to rent their property to tenants who are engaged in non-marital sex of any sort, including homosexual behavior, for reasons based in sincere religious belief; (c) prohibit individuals and entities from declining to participate in or lend support to homosexual marriage or commitment ceremonies, for reasons based in sincere religious belief; and (d) prohibit individuals and entities from declining to provide spousal employment benefits to the same-sex partners or spouses of employees, for reasons based in sincere religious belief; (e) prohibit individuals and entities from establishing sex-specific restrooms and limiting them to members of the appropriate biological sex, for reasons based in sincere religious belief.

Austin Statesman reports on the lawsuit.

Churches Sue For Exemptions From City's Employment Non-Discrimination Ordinance

A Texas-based organization of churches has filed suit against the city of Austin claiming that the city's non-discrimination ordinance violates member churches' federal and state constitutional rights and Texas' Religious Freedom Restoration Act. The complaint (full text) in U.S. Pastor Council v. City of Austin, (WD TX, filed 10/6/2018), contends that the Austin ordinance which bans employment discrimination on the basis of sex, sexual orientation or gender identity infringes the rights of churches that will not hire women as senior pastors or which will not hire practicing homosexuals or transgendered individuals for any church position.  The only religious exemptions set out in the Austin ordinance are for religious institutions' hiring on the basis of religion.  The complaint declares that objecting churches "rely on the Bible rather than modern-day cultural fads for religious and moral guidance." KXAN News reports on the decision.

5th Circuit: Subpoena To Catholic Bishops Should Have Been Quashed

In Whole Woman's Health v. Smith, (5th Cir., July 15, 2018), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, held that a Texas federal district court should have quashed a document discovery order directed at the Texas Conference of Catholic Bishops.  The discovery order came in a case in which several health care providers are challenging the state's fetal remains regulations which they contend burdens women's right to abortion. The majority opinion said in part:

The [district] court’s analysis of the free exercise and establishment clause claims begs the fundamental, novel issues presented under these circumstances. The court’s rejection of the free speech, association, and petition claims too narrowly construes the nature of chilling effects on those rights while overbroadly interpreting the importance to the plaintiffs of the discovery sought here....

[T]he claim of religious organizations to maintain their internal organizational autonomy intact from ordinary discovery should be at least as secure as the protection constitutionally afforded other associations. Supreme Court decisions have protected religious organizations’ internal deliberations and decision-making in numerous ways.... Although none have spoken directly to discovery orders in litigation, the importance of securing religious groups’ institutional autonomy, while allowing them to enter the public square, cannot be understated and reflects consistent prior case law.

The majority however, pointing to the rule of constitutional avoidance, decided the case on the basis of Federal Rules of Civil Procedure 45(d) which calls for quashing a subpoena when it imposes an undue burden.

Judge Ho also filed a brief concurring opinion.  Judge Costa filed a dissenting opinion.  Becket issued a press release announcing the court's decision.

5th Circuit: Bishops Win Temporary Stay of Subpoena For E-Mails

The U.S. 5th Circuit Court of Appeals in Whole Woman's Health v. Smith, (5th Cir., June 18, 2018), has granted an emergency stay of a district court's order (see prior posting) refusing to quash a subpoena issued to the Texas Catholic Conference of Bishops.  The subpoena, in a suit challenging the constitutionality of a Texas law that requires health providers to bury or cremate fetal remains after an abortion, sought e-mails relating to burial, cremation, or disposition of fetal or embryonic tissue.  The Catholic Bishops' emergency motion for a stay (full text) argued that enforcement of the subpoena would violate their 1st Amendment rights and RFRA. Becket issued a press release announcing the 5th Circuit's action.

Court Enforces Document Subpoena Against Texas Catholic Bishops

Last year a suit was filed in Texas federal district court challenging the constitutionality of a Texas law that requires health providers to bury or cremate fetal remains after an abortion. (See prior related posting.) A preliminary injunction against enforcement of the law was issued in January.  Now, as the case moves toward trial, a federal district court has rejected a motion filed by the Texas Catholic Conference of Bishops attempting to quash a subpoena for documents.  In Whole Woman's Health v. Smith, (WD TX, June 13, 2018), the court rejected a free exercise challenge to a subpoena for e-mails relating to burial, cremation, or disposition of fetal or embryonic tissue.  The court said in part:

The documents requested do not address religious doctrine or church governance, but instead relate directly to a factual issue that will be central at trial: precisely what burial services are available, and will remain available, to abortion providers in Texas. That the primary organization presently offering to make those services available is a church does not make the relevant facts immune from discovery....

...  [E]ven if there would be some chilling effect on the members of the TCCB if the subpoenaed documents are produced—and that is doubtful—the Plaintiffs’ interest in obtaining the documents is sufficient to outweigh any such impact.

Challenge May Proceed Against School Policy of Disciplining Students Who Refuse To Recite Pledge

In Arceneaux v. Klein Independent School District, (SD TX, May 22, 2018), a Texas federal district court allowed a high school student to move ahead with her free speech, free exercise, and equal protection challenges to a school policy of disciplining and harassing students for sitting during the Pledge of Allegiance.

Texas' Highest Criminal Court Upholds Law Punishing Sexual Assault By Polygamists More Harshly

In Estes v. State of Texas, (TX Ct. Crim. App., May 9, 2018), the Texas Court of Criminal Appeals, reversing the Court of Appeals, upheld the constitutionality of a Texas statute that provides higher penalties for polygamists who sexually assault their purported spouses than for other sexual assaults.  Defendant argued that the statute had the effect of treating married people more harshly than others.  The majority held that where, as here, the assault victim was a minor, it is enough that the state had a rational basis for the distinction it drew, saying in part:

[T]he Legislature could rationally conclude that to be a married man or woman is to project the kind of “stability” and “safe haven” that many children find comfort in.... And it could rationally see fit to declare that one who would enjoy this marital perception of trustworthiness will be punished all the more severely if he uses it to groom, and then sexually abuse, a child.

Judge Newell, joined by Judges Hervey and Richardson, filed a separate opinion concurring in part and dissenting in part, saying:

[W]hile I ultimately agree with the Court that the legislative classification is rationally related to a legitimate state interest, I disagree with the Court’s chosen path to that result....

The State’s interest in protecting children does not explain why a legislative distinction between married and unmarried defendants is rational. It only serves to make the State’s argument supporting that distinction look more substantial....

Ultimately, the resolution of this case turns upon the level of scrutiny we must apply in our evaluation of the statute at issue. Does strict scrutiny apply because the distinction between married and unmarried offenders significantly interferes with the fundamental right to marry? Rather than remand the case to the court of appeals to decide the issue, I would address the issue head-on. The answer is no.

Judge Alcala dissented without filing a separate opinion.