Texas Legislature, Voters Approve Pro-Religious Freedom Constitutional Amendment

On November 2, 2021, Texas voters approved an amendment to their state constitution prohibiting government limitations on religious services. The amendment added the following text to Article I of the Texas Constitution, which contains the Texas Bill of Rights:

Sec. 6-a.  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.[1]

The Texas Legislature passed the amendment in response to restrictions on group gatherings during the COVID-19 pandemic that affected the ability of religious groups to gather and worship. As the House Committee Report explained: “The First Amendment to the U.S. Constitution preserves Americans’ fundamental right to worship and assemble. Concerns have been raised over restrictions put in place by state and local governments in response to the COVID-19 pandemic that violated the right to the free exercise of religion.”[2]

Throughout the COVID-19 pandemic, courts across the country were inundated with cases involving religious groups’ challenges to government restrictions on group gatherings. In the Western District of Kentucky, Judge Justin Walker issued a temporary restraining order against the mayor of Louisville noting that the mayor “criminalized the communal celebration of Easter” in a “stunning” and “unconstitutional” order.[3] In Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court granted an injunction pending appeal to plaintiffs who showed that an executive order of the Governor of New York “single[d] out houses of worship for especially harsh treatment.”[4] And in Tandon v. Newsom, the Court granted an injunction pending appeal to plaintiffs who showed that “California treats some comparable secular activities more favorably than at-home religious exercise.”[5]

In the early stages of the COVID-19 pandemic, Texas municipalities issued orders that arguably violated the First Amendment’s protection of the free exercise of religion. For example, in March and April 2020, the non-profit First Liberty Institute sent letters to the mayors of McKinney[6] and Frisco[7] urging them to revise orders that substantially burdened religious exercise and were arguably overbroad. In both cases, the cities revised their orders. Unlike the governors of New York and California, Governor Greg Abbott of Texas declared in Executive Order GA-14 that religious worship services are essential services that must be allowed to remain open during the COVID-19 pandemic.[8]

Although Governor Abbott took a strong stance in favor of religious freedom during the COVID-19 pandemic, state lawmakers sought to elevate those protections to the status of constitutional rights in the Texas Constitution. The Texas Legislature passed the above-quoted constitutional amendment during the 87th Legislature’s regular session in S.J.R. 27,[9] and Texas voters approved it with a vote of 62.42% on November 2, 2021.[10] Though the amendment was passed in response to COVID-19 pandemic restrictions, its text provides broad protections for religious services with implications for government action unrelated to the pandemic: “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 . . . in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.” The exact scope and contour of these protections remains to be seen. But for now, Texas has solidified its place as one of the strongest states in the country for protecting religious freedom.

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