In 2021, Texas voters approved an amendment to the state constitution that provides:
This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.
The amendment was a response to orders during the Covid pandemic that limited the size of gatherings for religious services. (Background.)
In Perez v. City of San Antonio, (5th Cir., Aug. 28, 2024), the U.S. 5th Circuit Court of Appeals certified to the Texas Supreme Court the question of whether this ban is an absolute one, or whether the amendment merely imposes a strict scrutiny requirement on any limitation. The issue arises in a suit by members of the Lipam-Apache Native American Church who claim that improvements to a park that include tree removal and rookery management destroy their ability to use a sacred site in the park for certain religious ceremonies. In a prior decision, the 5th Circuit rejected plaintiffs' claim under the Texas Religious Freedom Restoration Act. It then held that plaintiffs had not adequately briefed the question of whether the Religious Services Amendment to the constitution covers a compelled preservation of spiritual ecology. (See prior posting.) Plaintiffs filed a motion for a rehearing, and in this week's decision the panel withdrew its original opinion and certified the question of the meaning of the Religious Services Amendment to the Texas Supreme Court, saying in part:
Neither party has cited any cases interpreting this constitutional provision, nor has this court found any. This potentially outcome determinative issue raises novel and sensitive questions....
