The Clause gives:
This state or a political subdivision of this state could not enact, undertake, or situation a statute, order, proclamation, choice, or rule that prohibits or limits spiritual providers, together with spiritual providers performed in church buildings, congregations, and locations of worship, on this state by a non secular group established to help and serve the propagation of a sincerely held spiritual perception.
In Friday’s Perez v. Metropolis of San Antonio, the Texas Supreme Courtroom concluded that this provision, when it applies, “is absolute and categorical, which means it forbids governmental prohibitions and limitations on spiritual providers whatever the authorities’s curiosity in that limitation or how tailor-made the limitation is to that curiosity.” It additionally concluded that it is a substantive safety, not simply an antidiscrimination rule that bars “orders that handled spiritual providers much less favorably than secular actions.” And it concluded that “the Clause protects not solely the proper to collect for spiritual providers but additionally worship practices which are a part of spiritual providers.”
However the court docket additionally concluded that the supply is proscribed in scope, in related half reasoning:
[T]he Clause protects solely “spiritual providers”; it doesn’t, for instance, purport to guard the broader idea of the “free train of faith.” … [I]t [also] protects solely spiritual providers “performed … on this state by a non secular group established to help and serve the propagation of a sincerely held spiritual perception.” And … it forbids solely authorities actions that “prohibit[] or restrict[]” such providers….
As a result of the Clause dietary supplements and doesn’t supplant the protections already offered by the Free Train Clause, the Freedom of Worship Clause, and the Texas RFRA, the linguistic context means that the Non secular Providers Clause doesn’t try and independently and comprehensively deal with all governmental limitations on spiritual freedoms. And the historic context additionally confirms that those that drafted and proposed the modification didn’t intend that its scope be limitless.
The Home sponsor, for instance, said throughout the flooring debates that “current native legal guidelines and ordinances and guidelines coping with the fireplace code, with well being and security hazards, with zoning restrictions, these with legal justice and public security legal guidelines, these would nonetheless have the ability to be enforced and this constitutional modification does nothing to have an effect on these.” He went on to say he didn’t intend the modification to deal with “each single occasion the place a fireplace code could also be violated or the place a police officer could must enter a church to do his or her job.” As one other Home member informed the committee, “I do not suppose there’s anyone, any court docket, anyplace that may learn this to say that if there is a true well being and security situation, that you just can’t implement that well being and security situation.”
Though we’d like not deal with right here whether or not the Clause reaches fireplace codes, police exercise, or “true well being and security situation[s],” we will conclude with assurance, primarily based on the Clause’s textual content and historic context, that it usually forbids governmental enactments that prohibit folks from gathering for a non secular service (just like the COVID lock-down orders), prohibit the quantity or relationships of people that can collect for a non secular service (just like the COVID orders imposing capability caps), or regulate the actions wherein folks could interact once they collect (just like the COVID orders prohibiting singing, chanting, or communion).
Past that, to offer a useful reply to this licensed query, we’d like solely take into account and deal with the information because the Fifth Circuit presents them to us. {[Native American] Church members consider that at sure instances all year long they have to take part in sure spiritual providers within the “Sacred Space” [in a local park]—a twenty-by-thirty-foot house amongst cypress bushes on the south shore of the river bend—going through north to allow them to observe the bushes and the cormorants nesting and flying throughout the “religious ecology.”} The Metropolis’s choice to take away and change bushes and deter migratory birds in a preferred Metropolis park doesn’t purport to ban the Church from gathering or regulate what the Church could do when it gathers. As a substitute, at most, it eliminates or reduces pure components of the Metropolis’s actual property that the Church believes are essential parts of its spiritual providers. Such a governmental conduct is indisputably completely different in character from the kind of governmental conduct the folks sought to proscribe by adopting the brand new Non secular Providers Clause.
Not like the COVID orders that gave rise to the adoption of the Non secular Providers Clause, the governmental choices at situation right here contain the preservation and upkeep of public property that’s owned and managed by the federal government, not by the Church or its members. Perez agrees that the Clause doesn’t require the Metropolis to present the Church with parts which are essential for its spiritual providers or to stop limitations on these parts attributable to different sources. And Perez concedes the Clause doesn’t stop the Metropolis from promoting this very property to a personal developer or from taking actions which are essential to make sure that all members of the general public can entry and benefit from the Lambert Seashore space equally with the Church. However in Perez’s view, for so long as the Metropolis owns the property, the Clause a minimum of forbids the Metropolis from taking any motion that may deprive the Church of bushes and birds which are essential parts of the Church’s spiritual providers….
[A]lthough the Non secular Providers Clause forbids the federal government from prohibiting or limiting spiritual providers, nothing in its textual content purports to deal with governmental preservation and administration of public lands or the tensions between such actions and non secular liberties. To no matter extent we may construe the textual content broadly to embody Perez’s claims, the Clause’s linguistic and historic context establishes that it doesn’t embody “limitations” on spiritual providers that outcome from the federal government’s preservation and upkeep of the pure options of public lands….
