In 2021, Texas added a new protection to its state constitution that protects religious services from certain types of government interference. The Texas Supreme Court recently analyzed the protection for the first time when it answered a certified question from the Fifth Circuit.[1]

Background and Legal Proceedings

Members of the Lipan-Apache Native American Church sincerely believe that they need to participate in religious services in a specific, sacred area of a park owned by the city of San Antonio.[2] San Antonio has accommodated these services while also making improvements to the area that facilitate public safety and access.[3] Pursuant to a bond measure, San Antonio sought to make significant improvements to the park, including removing and replacing most trees and deterring migratory birds, like cormorants—birds which the Church considers sacred.[4]

In 2023, the city temporarily blocked off the area after a retaining wall failed and a large branch fell.[5] In response, the plaintiffs (members of the Church) sued San Antonio in federal court.[6] The district court ordered the city to remove the tree branch and allow Church members to access the area; the city complied with the order.[7] The plaintiffs also sought injunctive and declaratory relief relating to the city’s improvement plan, arguing that because the trees and cormorants “are ‘necessary components’ of the Church’s religious services,” and the plan would destroy the Church’s worship area.[8] They invoked the federal Free Exercise Clause, the Texas Religious Freedom Restoration Act (RFRA), and the state constitution’s respective protections for religious worship and for religious services.[9] The Religious Services Clause—Article I, Section 6-a—was added in 2021, and it 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 district court ordered San Antonio to allow Church members access to the sacred area on certain dates, but it did not enjoin the city from removing trees and deterring birds.[10]

On appeal, the Fifth Circuit initially affirmed, and it determined that the plaintiffs had not sufficiently briefed the Clause’s applicability.[11] On rehearing, the panel withdrew its opinion and certified a question to the Texas Supreme Court:

Does the “Religious Service Protections” provision of the Constitution of the State of Texas—as expressed in Article 1, Section 6-a—impose a categorical bar on any limitation of any religious service, regardless of the sort of limitation and the government’s interest in that limitation?[12]

The Texas Supreme Court accepted the question.

The Opinion

The court, in an opinion authored by Justice Boyd, initially considered the Clause’s force, and it held that when the Clause applies, it is a “categorical bar.”[13] In other words, not even strict scrutiny provides an avenue to survival for otherwise prohibited government conduct.[14]

That the Clause was absolute came from its text, linguistic context, and historical context:

  • The Clause emphatically used “may not,” thereby imposing a direct prohibition on impermissible government conduct.[15]
  • Because the Free Exercise Clause and the state constitution’s Free Worship Clause employ strict scrutiny, the court believed it must interpret the Clause to “produce[] an independent meaning and operative effect.”[16]
  • History revealed that the Clause was proposed and passed after religious services—despite existing protections—were subject to myriad government restrictions due to COVID-19.[17] The Clause, when ratified, was thus understood to provide greater protection than the Free Exercise Clause and the RFRA.[18]

Ultimately, when applicable, the Clause “categorically bars a governmental prohibition or limitation on religious services” regardless of whether the prohibition or limitation “passes strict scrutiny or any other test that balances the right against the government’s interests.”[19]

The court then turned to the Clause’s scope, i.e., whether the Clause “forbids ‘any limitation of any religious service, regardless of the sort of limitation.’”[20] The court, like the parties and amici, recognized it did not.[21]

Because this was a case of first impression among Texas’s appellate courts, the court declined to identify the Clause’s comprehensive boundaries.[22] But it considered the issue in the instant case: “[W]hether the Clause’s scope reaches governmental actions taken to preserve and maintain public property for the safety and enjoyment of the public.”[23] The court held it did not.[24]

In reaching its conclusion, the court noted the myriad textual limitations within the Clause, including that it only applies to certain actions that “prohibit[] or limit[]” religious services.[25] It determined that the Clause’s scope “includes but is not limited to governmental orders that treat religious services unequally, or to orders that prohibit or limit religious gatherings, or by amorphous longstanding interpretive principles.” But, of course, the Clause’s “scope is not unlimited.”[26] Given existing protections for religious exercise when the Clause was adopted, it was apparent that the Clause simply supplemented those protections; it did not supersede them.[27] The historical context also suggested some limitations on the Clause’s reach, such as when the effect of health and safety codes is at issue.[28]

In the instant case, San Antonio’s improvement plan did “not purport to prohibit the Church from gathering or regulate what the Church may do when it gathers.”[29] Rather, the city sought to preserve and maintain “public property that is owned and managed by the government, not by the Church or its members.”[30] The court ultimately concluded that the “Clause’s linguistic and historical context establishes that it does not encompass ‘limitations’ on religious services that result from the government’s preservation and maintenance of the natural features of public lands.”[31]

Justice Sullivan dissented. He would have declined to answer the question because it resulted in “an advisory opinion that answers a certified question the Fifth Circuit didn't ask.”[32] He also felt the plaintiffs had already forfeited their case through inadequate briefing, and he believed the court “shouldn't go out of [its] way to torpedo a Section 6-a claim that might sink anyway due to forfeiture when the plaintiffs return to the Fifth Circuit.”[33]

[1] Perez v. City of San Antonio, No. 24-0714, --- S.W.3d ----, 2025 WL 1675639 (Tex. June 13, 2025).

[2] Id. at *1.

[3] Id.

[4] Id. at *2.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. 

[11] Perez v. City of San Antonio, 98 F.4th 586 (5th Cir. 2024).

[12] Perez v. City of San Antonio, 115 F.4th 422, 428 (5th Cir. 2024).

[13] Perez, 2025 WL 1675639, at *4–5.

[14] See id. at *4.

[15] Id. at *5.

[16] Id.

[17] Id. at *5–6.

[18] Id. at *7.

[19] Id.

[20] Id. at *8.

[21] Id.

[22] Id. 

[23] Id. 

[24] Id.

[25] Id. at *9.

[26] Id. at *11.

[27] Id.

[28] Id.

[29] Id.

[30] Id. at *12.

[31] Id. at *13.

[32] Id. at *13–14 (Sullivan, J., dissenting).

[33] Id. at *14.

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