Texas Supreme Court holds Texas Constitutional Religious Services Clause is absolute when applied, but only applies to services and not the free exercise of religion

GARY PEREZ AND MATILDE TORRES v. CITY OF SAN ANTONIO, Cause No. 24-0714 (Tex. June 13, 2025).

This is a statutory construction/religious freedom case (TxRFRA case on certified question) where the Texas Supreme Court held the 2021 constitutional amendment prohibiting government from restricting religious exercise did not encompass the City’s repair and expansion of a City park.

In 2021, voters adopted a new clause in the Texas Constitution that forbids their government from enacting a rule that “prohibits or limits” certain “religious services.” TEX. CONST. art. I, § 6-a (“ Clause”).  Perez Plaintiffs are members of the Lipan-Apache Native American Church, which believes life began along the San Antonio River, with one portion being considered sacred.  For over 125 years, the Sacred Area has existed within Brackenridge Park, a popular public park located in and owned by the City of San Antonio. The City began a park update plan which included repairing a retaining wall and replacing trees and deterring migrating birds. In 2023, a retaining wall failed, and a large tree branch fell near the Sacred Area. When the City temporarily blocked all access to the area, Perez sued the City. Perez contends that the City’s removal of the trees and deterrence of the birds will violate his rights.

The Court first examined whether the Clause is absolute and second whether it is unlimited. Perez argues that, when the Clause applies, it applies with “absolute force” and “categorically bars” a prohibited limitation on religious services regardless of the government’s interest. The City asserts the Clause does not forbid laws that are narrowly tailored to promote a compelling governmental interest. The Court went through a lengthy analysis and held the Clause only applies in certain circumstances, but when it does apply, it is a categorial bar. The Clause only protects religious services, not the free exercise of religion. Because the Clause supplements and does not supplant the protections already provided by the Free Exercise Clause, the Freedom of Worship Clause, and the Texas RFRA, the linguistic context suggests that the Religious Services Clause does not attempt to independently and comprehensively address all governmental limitations on religious freedoms.  The City’s decision to remove and replace trees and deter migratory birds in a popular City park does not purport to prohibit the Church from gathering or regulate what the Church may do when it gathers. Instead, at most, it eliminates or reduces natural elements of the City’s real property that the Church believes are necessary components of its religious services. This type of governmental conduct is indisputably different in character from the type of governmental conduct the people sought to proscribe by adopting the Clause.  The Clause does not require the City to provide the Church with components that are necessary for its religious services or to prevent limitations on those components caused by other sources.  When the Texas Religious Services Clause applies, its force is absolute and categorical, meaning it forbids governmental prohibitions and limitations on religious services regardless of the government’s interest in that limitation or how tailored the limitation is to that interest, but the scope of the clause’s applicability is not unlimited, and it does not extend to governmental actions for the preservation and management of public lands.

If you would like to read this opinion, click here. Justice Boyd delivered the opinion of the Court, in which Chief Justice Blacklock, Justice Lehrmann, Justice Devine, Justice Busby, Justice Bland, Justice Huddle, and Justice Young joined.

Justice Sullivan filed a dissenting opinion.