Gary Perez and Matilde Torres v. City of San Antonio

Supreme Court of Texas
══════════
No. 24-0714
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Gary Perez and Matilde Torres,
Appellants,

v.

City of San Antonio,
Appellee

═══════════════════════════════════════
On Certified Question from the
United States Court of Appeals for the Fifth Circuit
═══════════════════════════════════════

Argued December 4, 2024

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.

The people of Texas voted to amend the Texas Constitution in
2021 by adding a new clause that forbids their government from
enacting a rule that “prohibits or limits” certain “religious services.”
TEX. CONST. art. I, § 6-a. The United States Court of Appeals for the
Fifth Circuit has asked this Court whether this new clause imposes “a
categorical bar on any limitation of any religious service, regardless of
the sort of limitation and the government’s interest in that limitation.”
Addressing the question as containing two parts, we answer: (1) when
the clause applies, its force is absolute and categorical, meaning it
forbids governmental limitations on religious services regardless of the
government’s interest in the limitation or how tailored the limitation is
to that interest, but (2) the scope of the clause’s applicability is not
unlimited. Without attempting to precisely or comprehensively define
that scope today, we conclude it does not extend to the government’s
preservation and management of publicly owned lands.
I.
Background
Gary Perez and Matilde Torres (collectively, Perez) are members
of the Lipan-Apache Native American Church. The Church believes that
life on earth began at a spring along the Yanaguana, which is now
known as the San Antonio River. A particular bend in the river, which
resembles the shape of the constellation Eridanus, serves in the
Church’s faith as a sacred connection between the physical and spiritual
worlds. According to the Church’s teaching, the spring created the Blue
Hole, in which a spirit in the form of a blue panther resided. Another
spirit, taking the form of a cormorant, appeared at the Blue Hole, but
the panther spirit startled the bird spirit and caused it to flee, dropping
water from its tail that produced life throughout the San Antonio River
Valley. Church members believe that at certain times throughout the
year they must participate in certain religious services in the “Sacred
Area”—a twenty-by-thirty-foot space among cypress trees on the south
shore of the river bend—facing north so they can observe the trees and

2
the cormorants nesting and flying within the “spiritual ecology.” 1
Evidence exists that indigenous peoples have conducted similar
religious services in and around the Sacred Area for thousands of years.
Perez has worshipped and led religious ceremonies there for at least
twenty-five years, and Torres has worshipped and participated in
religious ceremonies there for at least ten years. No one disputes that
they and the Church sincerely hold these religious beliefs.
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. Recognized as a local, state, and national historic
landmark, the sprawling park contains numerous amenities including
picnic areas, hiking paths, sports facilities, a zoo, a tea garden, a theater,
a golf course, and a natural-history museum. More than one hundred
years ago, the City constructed a public recreation area at the riverbend
called Lambert Beach. Through the years, the City has accommodated
the Church’s religious gatherings in the Sacred Area while also
constructing retaining walls and other improvements to promote public
health and safety and to preserve the beach area for public use. Over
time, retaining walls have eroded and failed, trees have weakened and
died, and bird excrement has greatly increased, creating health and
safety issues.
In 2016, City voters approved a bond package that included
nearly $8 million for park improvements, and the City contracted with
a design team that developed a plan to address issues in the Lambert

1The Church performs ceremonies at the Sacred Area at particular
“holy moments” on specific dates throughout the year.

3
Beach area. The improvement plan includes repairing retaining walls,
removing and replacing most of the trees, and deterring migratory
birds—including cormorants—from nesting nearby. Various city, state,
and federal government agencies must approve and permit the
improvements. The parties dispute the extent to which the proposed
measures are necessary for public health and safety and the extent to
which the City has attempted to accommodate the Church’s religious
services as part of the improvement plan.
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 in federal court. The district court granted
immediate relief requiring the City to remove the tree branch and grant
the Church access to the Sacred Area, and the City complied with that
order. Perez sought additional relief, however, asserting that the City’s
improvement plan will destroy the Church’s sacred worship space by
eliminating trees and deterring cormorants, both of which are
“necessary components” of the Church’s religious services.
Perez contends that the City’s removal of the trees and deterrence
of the birds will violate his rights (1) to the “free exercise” of religion
under the First Amendment to the United States Constitution, (2) to the
“freedom of worship” protected under Article I, Section 6 of the Texas
Constitution, (3) to be free from governmental action that “substantially
burdens” his “free exercise of religion” under the Texas Religious
Freedom Restoration Act (the Texas RFRA), and (4) to be free from
governmental action that “prohibits or limits religious services” under
the new clause, Article I, Section 6-a of the Texas Constitution. Perez

4
requests injunctive and declaratory relief to require the City to minimize
any tree removal in or near the Sacred Area, to allow the cormorants to
nest in and around the Sacred Area, and generally to revise the
improvement plan to accommodate the Church’s religious-service
requirements.
The district court declined Perez’s request for a temporary
restraining order but later partially granted a preliminary injunction,
ordering the City to allow the Church to have access for religious
ceremonies involving limited-sized groups on certain dates but declining
to enjoin the City’s tree-removal and bird-deterrence plans. Perez
appealed, and the Fifth Circuit initially affirmed. Perez v. City of San
Antonio, 98 F.4th 586, 614 (5th Cir. 2024). The court rejected Perez’s
claims under the First Amendment, the Texas Constitution’s Freedom
of Worship Clause, and the Texas RFRA, id. at 596–611, and concluded
that Perez did “not sufficiently brief the question of whether” the new
Texas Religious Services Clause provides him with additional
protections, id. at 612. The court thus concluded that Perez failed “to
meet [his] burden to show a likelihood of success on the merits” of that
claim. Id.
After granting Perez’s rehearing motion, the Circuit panel
withdrew its opinion and certified to this Court the following question: 2

2 See TEX. CONST. art. V, § 3-c(a) (“The supreme court [has] jurisdiction

to answer questions of state law certified from a federal appellate court.”); TEX.
R. APP. P. 58.1 (“The Supreme Court of Texas may answer questions of law
certified to it by any federal appellate court if the certifying court is presented
with determinative questions of Texas law having no controlling Supreme
Court precedent.”).

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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?

Perez v. City of San Antonio, 115 F.4th 422, 428 (5th Cir. 2024). We
accepted the certified question, received briefing from the parties, and
held oral arguments in which Perez, the City, and the State of Texas—
acting as an amicus and represented by the Attorney General—
participated. We also received helpful amicus briefs from (1) the State,
(2) First Liberty Institute, 3 (3) the International Council of Thirteen
Indigenous Grandmothers and Carol Logan, 4 (4) the Texas Catholic
Conference of Bishops, 5 and (5) the Baptist General Convention of
Texas. 6

3 First Liberty Institute describes itself as “a nonprofit, public interest

law firm dedicated to defending religious liberty for all Americans through pro
bono legal representation of individuals and institutes of diverse faiths.”
4The International Council describes itself as “a global alliance of
indigenous elders who come together in prayer, education, and healing for
Mother Earth . . . to protect indigenous ways of life from destruction and to
preserve the lands where Indigenous peoples live and upon which their
cultures depend.” Ms. Logan describes herself as “an elder from the
Confederated Tribes of Grande Ronde and a lineal descendant of the
Clackamas People.”
5 The Catholic Conference describes itself as “an ecclesiastical
unincorporated consultive nonprofit association [that] furthers the religious
ministry of Roman Catholic bishops and archbishops in this State, particularly
through advocacy for social, moral, and institutional concerns of the Catholic
Church.”
6 The Baptist Convention describes itself as a “nonprofit corporation in

Texas” that serves and operates “in harmonious cooperation” with “over two

6
II.
The Texas Religious Services Clause
The certified question requests that we interpret and construe the
new Religious Services Clause. Ultimately, our “bottom-line task is to
identify what” this Clause “would have meant to those who ratified it”
in 2021. Hogan v. S. Methodist Univ., 688 S.W.3d 852, 857 (Tex. 2024)
(citing In re Abbott, 628 S.W.3d 288, 293 (Tex. 2021)). To accomplish
this, we must “rely heavily on the literal text,” Harris Cnty. Hosp. Dist.
v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009), presuming that
“the framers carefully chose the language,” Degan v. Bd. of Trs. of Dall.
Police & Fire Pension Sys., 594 S.W.3d 309, 313 (Tex. 2020), and
interpreting it to mean what the voters who ratified the amendment
would have understood it to mean, see Abbott, 628 S.W.3d at 293. We
focus on the voters’ contemporaneous understanding because—as we
have long confirmed—“[t]he meaning which a constitutional provision
had when adopted, it has to-day; its intent does not change with time
nor with conditions; while it operates upon new subjects and changed
conditions, it operates with the same meaning and intent which it had
when formulated and adopted.” Travelers’ Ins. Co. v. Marshall, 76
S.W.2d 1007, 1011 (Tex. 1934).
To determine the ratifiers’ contemporaneous understanding, we
must consider not only the words in the immediate text but also their
“historical and linguistic context”—that is, the “full context of the
constitutional language and history.” In re Dallas County, 697 S.W.3d

million congregants in more than 5,300 churches” that “participate in worship
services through the week.”

7
142, 157–58 (Tex. 2024). 7 When construing the Constitution, we “‘resist
rulings anchored in hyper-technical readings of isolated words or
phrases,’ because ‘the meaning of words read in isolation is frequently
contrary to the meaning of words read contextually in light of what
surrounds them.’” Id. at 158 (quoting In re Off. of Att’y Gen. of Tex., 456
S.W.3d 153, 155 (Tex. 2015)). That is, we must not “simply open a
dictionary” and “ignore the historical traditions and legal foundations
upon which [our founding documents] were constructed.” Hogan, 688
S.W.3d at 857, 859. Instead, we may consider evidence of the
contemporaneous explanations and understandings of the legislature
that proposed the language and the electorate that voted on its
ratification. Degan, 594 S.W.3d at 313. 8 This evidence may shed helpful

7 Consideration of the linguistic context involves reading the
Constitution “as a whole,” focusing on all provisions that relate to the same
subject matter, giving meaning and effect to each. In re Nestle USA, Inc., 387
S.W.3d 610, 619–20 (Tex. 2012) (quoting Collingsworth County v. Allred, 40
S.W.2d 13, 15 (Tex. 1931)). The historical context includes factors such as “the
history of the legislation, the conditions and spirit of the times, the prevailing
sentiments of the people, the evils intended to be remedied, and the good to be
accomplished.” Harris Cnty. Hosp. Dist., 283 S.W.3d at 842 (citations omitted).
8 See also Abbott, 628 S.W.3d at 293 (“The legislature’s mid-nineteenth

century view that article III, section 10 authorized it to take absent members
‘into custody’ is therefore particularly compelling evidence of the original
understanding of the provision.”); Am. Indem. Co. v. City of Austin, 246 S.W.
1019, 1023 (Tex. 1922) (“Legislative construction and contemporaneous
exposition of a constitutional provision is of substantial value in constitutional
interpretation.”). When interpreting Article XVI, Section 66 of the Texas
Constitution, for example, we noted that “its impetus was a Depression-era
decision from this Court.” Degan, 594 S.W.3d at 313. We concluded that
“[l]egislative history . . . confirms that Section 66 was added to the Constitution
to overrule our decision.” Id. And in Edgewood Independent School District v.
Kirby, we looked to records from the Constitutional Convention of 1875 and
“the structure of school finance” at the time of ratification to interpret Article

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light on what the text meant to those who ratified the amendment, but
it “must ordinarily yield when the text’s plain meaning says the
opposite.” In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 467 (Tex.
2011).
The text of the Texas Religious Services Clause 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.

VII, Section 1. 777 S.W.2d 391, 396 (Tex. 1991); see also Marshall, 76 S.W.2d
at 1024 (analyzing “the history of the adoption of the contract clause in the
Federal Constitution, its incorporation in the organic laws of the several states,
and the long judicial interpretation thereof by the Supreme Court of the United
States, by the Supreme Courts of the several States, and by the Supreme Court
of Texas prior to 1876 (the date of the adoption of our present Constitution)”).
We certainly adhere to our view that, when interpreting and construing
a statute, “[l]egislative history is generally useless to courts—indeed, it can be
worse than useless because it is manipulable and relies on what never was the
law.” Brown v. City of Houston, 660 S.W.3d 749, 755 (Tex. 2023) (citing In re
Facebook, Inc., 625 S.W.3d 80, 88 n.4 (Tex. 2021)). But in the context of
constitutional interpretation, statements made by the legislature that
proposed amendments to the people can be relevant, even though they lack any
presumption of binding effect and are no more relevant than many other
sources that can address the larger context in which the people considered
ratification. Similarly, while the U.S. Supreme Court has turned away from
ordinary legislative history in statutory construction, in constitutional
interpretation it routinely cites the Records of the Federal Convention (a sort
of “legislative history”), see, e.g., Rucho v. Common Cause, 588 U.S. 684, 695,
697–98 (2019), as well as the Federalist Papers, see, e.g., SEC v. Jarkesy, 603
U.S. 109, 121–22, 127 (2024), and many other sources to help show how the
proposed text would have been understood by the ratifying public.

9
TEX. CONST. art. I, § 6-a. The parties and amici generally treat the
certified question as inquiring about both (A) the “force” of the Clause
when it applies (that is, whether it imposes “a categorical bar . . .
regardless of . . . the government’s interest in [the] limitation”) and
(B) the “scope” of its application (that is, whether it imposes a bar “on
any limitation of any religious service, regardless of the sort of
limitation”). Perez argues that the Clause’s force is “absolute” and
categorical, but he concedes that its scope is limited by its own terms
and by certain “longstanding interpretive principles of Texas
constitutional law.” The City, by contrast, argues that the Clause’s force
is limited in that it does not bar prohibitions or limitations that are
narrowly tailored to promote a compelling governmental interest and its
scope is limited to laws that subject religious services to “unequal
treatment” compared to secular gatherings and activities.
We agree with Perez that the Clause’s force is categorical when it
applies, and we agree with both parties that its scope is not unlimited.
But we reject both parties’ proposed descriptions of the Clause’s scope.
We need not—and, therefore, should not and do not—attempt to
exhaustively or precisely define the Clause’s scope to answer the
certified question in a way that assists the federal courts in deciding this
case. We conclude only that its scope does not reach the type of
governmental actions about which Perez complains.

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 in that

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limitation. All the amici who address the issue agree. But the City
disagrees, arguing that the Clause does not forbid laws that are
narrowly tailored to promote a compelling governmental interest. The
City, in other words, urges us to import into this new Clause the “strict
scrutiny” standard that the U.S. Supreme Court has imported into the
First Amendment’s Free Exercise Clause 9 and that the Texas

9 Since the early 1960s, the U.S. Supreme Court has held that the Free

Exercise Clause prohibits the government from restricting religiously
motivated conduct unless the restriction promotes a “compelling state interest”
and “no alternative forms of regulation would combat such abuses without
infringing First Amendment rights.” Sherbert v. Verner, 374 U.S. 398, 406–07
(1963). The Court has described this “strict scrutiny” standard—permitting
governmental restrictions only if they are narrowly tailored to promote a
compelling governmental interest—as “the most demanding test known to
constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997); see Cath.
Charities Bureau, Inc. v. Wis. Labor & Indus. Rev. Comm’n, 605 U.S. ___, 2025
WL 1583299, at *9 (2025) (referring to this standard as “the highest level of
judicial scrutiny”); Miller v. Johnson, 515 U.S. 900, 920 (1995) (describing
strict scrutiny as “our most rigorous and exacting standard of constitutional
review”).
We have also applied strict scrutiny to the Texas Constitution’s
Freedom of Worship Clause, which is original to the 1876 Texas Constitution
and provides in part: “All men have a natural and indefeasible right to worship
Almighty God according to the dictates of their own consciences,” and “No
human authority ought, in any case whatever, to control or interfere with the
rights of conscience in matters of religion.” TEX. CONST. art. I, § 6. For want of
arguments to the contrary, we have assumed that the Freedom of Worship
Clause provides protection that is “coextensive” with the federal Free Exercise
Clause and thus requires a strict-scrutiny analysis. See HEB Ministries, Inc.
v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627, 649–50 n.87 (Tex.
2007) (citing Tilton v. Marshall, 925 S.W.2d 672, 677 n.6 (Tex. 1996) (“Because
Tilton has not argued persuasively for a different application of the provisions
of the First Amendment and Article I, Section 6 as they pertain to the free
exercise of religion, we assume without deciding that the state and federal free
exercise guarantees are coextensive with respect to his particular claims.”));
see generally In re Commitment of Fisher, 164 S.W.3d 637, 645 (Tex. 2005)

11
Legislature has expressly included in the Texas RFRA. 10 Based on the
Clause’s text and context, we agree with Perez.
Turning first to the Clause’s text, we agree with Perez and the
amici that its plain language imposes a categorical bar. Without
identifying or acknowledging any caveats or exceptions, it states that
the government “may not” impose a requirement “that prohibits or
limits religious services.” The phrase “may not” in this context states a
direct prohibition, synonymous with “shall not,” declaring what the
government “is not permitted to do.” TEX. GOV’T CODE § 311.016(5);
BRYAN A. GARNER, Garner’s Dictionary of Legal Usage 568, 954 (3d ed.
2011). By contrast, numerous other constitutional and statutory
provisions state that the government “may not” or “shall not” do
something “unless,” “until,” or “except” in particular circumstances. 11

(“Where, as here, the parties have not argued that differences in state and
federal constitutional guarantees are material to the case, and none is
apparent, we limit our analysis to the United States Constitution and assume
that its concerns are congruent with those of the Texas Constitution.”).
10 The Texas RFRA provides that “a government agency may not
substantially burden a person’s free exercise of religion” unless “the
government agency demonstrates that the application of the burden to the
person: (1) is in furtherance of a compelling governmental interest; and (2) is
the least restrictive means of furthering that interest.” TEX. CIV. PRAC. & REM.
CODE § 110.003(a)–(b).
11 E.g., TEX. CONST. art. III, §§ 48-f (“An ad valorem tax may not be

levied . . . until approved by the qualified voters . . . .”), 49(d) (“Except as
provided by law under Subsection (f) of this section, the amount of debt stated
in the proposition may not be exceeded and may not be renewed after the debt
has been created unless the right to exceed or renew is stated in the
proposition.”); art. VII, § 5(c) (“Except as provided by this section, the
legislature may not enact a law appropriating any part of the permanent school
fund or available school fund to any other purpose.”); art. IX, § 9B (“A district

12
The Texas RFRA, for example, states that the government “may not
substantially burden a person’s free exercise of religion” but expressly
makes that prohibition “[s]ubject to” the government’s ability to
demonstrate that the imposition of the burden passes strict scrutiny.
TEX. CIV. PRAC. & REM. CODE § 110.003(a)–(b). The Religious Services
Clause contains no similar qualifying language.
The Clause’s linguistic context also supports this construction. As
explained, the federal Free Exercise Clause, the Texas Freedom of
Worship Clause, and the Texas RFRA all protect religious freedoms, but
they each—either expressly or as judicially construed—have been
understood to permit laws they would otherwise prohibit if the law
satisfies strict scrutiny. The Free Exercise Clause and the Freedom of
Worship Clause (as often judicially construed) already forbid laws that
target the free exercise of religion (which generally would include
religious services) unless the law survives strict scrutiny, and the Texas
RFRA expressly forbids laws that substantially burden the exercise of
religion unless the law survives strict scrutiny. Construing the Religious
Services Clause to also permit laws that prohibit or limit religious
services if the law survives strict scrutiny provides no meaningful
protection that the Free Exercise Clause and Freedom of Worship
Clause do not already provide. We must construe the Clause so that it

may not be created or a tax levied unless the creation and tax are approved by
a majority of the registered voters who reside in the district.”); art. XVI,
§§ 40(b) (“State employees or other individuals may not receive a salary for
serving as members of such governing bodies, except that . . . .”), 59(c-1) (“The
Legislature may not authorize the issuance of bonds or provide for
indebtedness under this subsection . . . unless a proposition is first submitted
to the qualified voters of the district and the proposition is adopted.”).

13
produces an independent meaning and operative effect. Doody v.
Ameriquest Mortg. Co., 49 S.W.3d 342, 344 (Tex. 2001).
The Clause’s historical context also supports this construction. As
the parties acknowledge and agree, the Legislature proposed and the
people ratified the Religious Services Clause in response to
governmental shut-down orders that prohibited and limited religious
services when the COVID-19 pandemic struck in 2020. Attempting to
“slow the spread,” governments around the country, including in
Texas, 12 issued “lock-down” orders and “social-distancing” requirements
that arguably imposed “the greatest intrusions on civil liberties in the
peacetime history of this country.” Arizona v. Mayorkas, 143 S. Ct. 1312,
1314 (2023) (GORSUCH, J., statement). As many turned to their religious
faith amid the growing fear and anxiety, their governments barred them
from gathering with fellow believers or worshipping in accordance with
their religious beliefs. Some jurisdictions prohibited all religious
services anywhere, both indoors and outdoors; some restricted all
in-person services and permitted only services by video, teleconference,
or other remote proceedings; some barred gatherings beyond individual
households; some limited the size of religious gatherings to as few as

12 See, e.g., The Governor of the State of Tex., Exec. Order GA-08 (issued

Mar. 19, 2020), 45 Tex. Reg. 2267, 2271 (2020) (restricting social gatherings of
ten or more people); Travis Cnty. Judge, Order No. 2020-04 (issued Mar. 21,
2020), https://www.traviscountytx.gov/images/docs/covid-19-order-4.pdf
(prohibiting gatherings of ten or more people unless social distancing “can be
maintained and controlled”); Tarrant Cnty. Judge, Second Amended
Declaration of Local Disaster Due To Public Health Emergency,
https://www.tarrantcountytx.gov/content/dam/main/global/Covid-
19/Declaration_of_Local_Disaster_2nd_Amendment.pdf (issued Mar. 21, 2020)
(requiring essential business to “enforce social separation”).

14
ten; some prohibited particular activities like singing or chanting; and
some prohibited religious leaders from ministering to adherents except
in individual settings following social-distancing requirements. 13
Yet many of these same governmental orders permitted other
activities or imposed lesser limitations, including for schools,
restaurants, bars, liquor stores, dry cleaners, plumbers, real-estate
transactions, electricians, exterminators, meat-packing plants,
distribution warehouses, marijuana dispensaries, firearm stores, and
casinos. 14 Many governmental orders deemed these secular entities and

13 See Mayorkas, 143 S. Ct. at 1314–15 (GORSUCH, J., statement); see

also, e.g., Mass. Exec. Order No. 13 (Mar. 24, 2020), https://www.mass.gov/doc/
march-23-2020-essential-services-and-revised-gatherings-order/download/
(limiting services at “[c]hurches, temples, mosques, and other places of
worship” “in any confined indoor or outdoor space” to ten people); S. Bay United
Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021) (S. Bay II) (denying
injunctive relief against California’s “prohibition on singing and chanting
during indoor services”); Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S.
14, 15–16 (2020) (per curiam) (enjoining enforcement of Governor of New
York’s executive order restricting religious services to ten or twenty-five
people); Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341, 343 (7th
Cir. 2020) (citing Executive Order 2020-32 § 2(3) (Apr. 30, 2020), the Governor
of Illinois’s executive order limiting all “public and private gatherings” to ten
people); Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 616 (6th Cir.
2020) (granting injunction to allow “drive-in service” in church parking lot
despite Governor’s order prohibiting “[a]ll mass gatherings”); Cross Culture
Christian Ctr. v. Newsom, 445 F. Supp. 3d 758, 764 (E.D. Cal. 2020) (noting
that “[f]aith based services that are provided through streaming or other
technology” were exempt from Governor’s stay-home orders, but not in-person
services); Tyler Shannon, Texas Proposition 3: A State Constitutional Response
to Restrictions on Religious Gatherings, 55 TEX. TECH L. REV. 559, 563–66
(2023) (discussing COVID-19 restrictions on religious gatherings nationwide,
including in Texas).
See, e.g., Mayorkas, 143 S. Ct. at 1314 (GORSUCH, J., statement);
14

Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2604 (2020)

15
activities to be “essential” while refusing the same status to religious
organizations and practices. 15 In Texas, most of the orders that
concerned religious gatherings were issued by local governments like
cities and counties. Three days after the federal Department of
Homeland Security released its Guidelines, the Texas Governor issued
an executive order defining “essential services” as consisting of
“everything listed by the U.S. Department of Homeland Security in its
Guidance on the Essential Critical Infrastructure Workforce, Version
2.0, plus religious services conducted in churches, congregations, and
houses of worship.” The Governor of the State of Tex., Exec. Order GA-14
(issued Mar. 31, 2020), 45 Tex. Reg. 2361, 2369–70 (2020) (emphasis
added).
People of faith filed numerous lawsuits challenging various
COVID lock-down orders under both the Free Exercise Clause and the
RFRA statutes. None reached this Court, and the results in courts in
other jurisdictions were mixed. The U.S. Supreme Court, for example,
initially denied two emergency applications to enjoin such orders,
concluding that the orders did not target or discriminate against
religious beliefs and practices and granted more lenient treatment only

(ALITO, J., dissenting from denial of application); Denver Bible Church v. Azar,
494 F. Supp. 3d 816, 832 (D. Colo. 2020).
15 See U.S. DEP’T OF HOMELAND SEC., ADVISORY MEMORANDUM ON
IDENTIFICATION OF ESSENTIAL CRITICAL INFRASTRUCTURE WORKERS DURING
COVID-19 RESPONSE (Mar. 28, 2020), https://www.cisa.gov/sites/default/
files/publications/CISA_Guidance_on_the_Essential_Critical_Infrastructure_
Workforce_Version_2.0_1.pdf.

16
to “dissimilar” (secular) activities. 16 Later in 2020, the Court granted an
injunction, concluding that the orders at issue might violate the Free
Exercise Clause because they treated religious entities and activities
more strictly than similar secular organizations and activities. 17 The
Court again granted limited relief in four cases in 2021. 18
Early in 2021, while many of these lawsuits were pending, the
Texas Legislature responded to these events by proposing in Senate
Joint Resolution 27 to amend the Texas Constitution by adding the
Religious Services Clause as Article I, Section 6-a. 19 Ultimately, the

Sisolak, 140 S. Ct. at 2603; S. Bay United Pentecostal Church v.
16

Newsom (S. Bay I), 140 S. Ct. 1613, 1613 (2020).
17 Roman Cath. Diocese of Brooklyn, 592 U.S. at 21.

18 Gateway City Church v. Newsom, 141 S. Ct. 1460, 1460 (2021);
Harvest Rock Church, Inc. v. Newsom, 141 S. Ct. 1289, 1290 (2021) (granting
relief as to capacity limitation on indoor worship services but denying relief,
without prejudice, as to prohibitions against singing and chanting); Gish v.
Newsom, 141 S. Ct. 1290 (2021) (vacating and remanding in light of S. Bay II,
141 S. Ct. at 716 (granting relief as to blanket prohibition on “indoor worship
services”)); Tandon v. Newsom, 593 U.S. 61, 62 (2021) (per curiam) (holding
that “government regulations are not neutral and generally applicable” if “they
treat any comparable secular activity more favorably than religious exercise,”
even if they treat “some comparable secular businesses or other activities as
poorly as or even less favorably than the religious exercise at issue”); see
generally Josh Blackman, The “Essential” Free Exercise Clause, 44 HARV. J.L.
& PUB. POL’Y 637, 683–701 (2021).
19 Texas Senate Joint Resolution 27 was not the Legislature’s only
action responding to pandemic-related limitations on religious liberties. It also
passed, for example, House Bill 525, adding chapter 2401 to the Texas
Government Code. See TEX. GOV’T CODE §§ 2401.001–.005. Chapter 2401
declares that religious organizations are “an essential business” in this State
and that their activities are “essential activities” even during a declared state
of disaster, regardless of what any disaster order may say, and provides that
governmental entities may not “prohibit a religious organization from

17
Senate passed the resolution on a vote of 28–2, 20 and the House passed
it on a vote of 133–3 (with three present not voting). 21 Over sixty-two
percent of Texas voters supported ratification of the Clause, and it
became effective near the end of November 2021. 22
This historical context confirms that those who voted to ratify the
Religious Services Clause understood that it would provide greater
protection for religious services than they understood the Free Exercise
Clause or the Texas RFRA provided during the COVID-19 pandemic. As
the House Resolution Analysis explains, the Legislature proposed the
amendment to address concerns “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” and to “do more to
protect this right for all Texans and ensure that religious liberty is not
abridged in the future.” 23
The historical context also confirms that those who proposed and
approved the Clause understood that it would provide greater protection
by categorically forbidding certain prohibitions and limitations on

engaging in religious and other related activities.” Id. § 2401.002(a). We are
not asked to address this new statutory provision in this case.
20 S.J. of Tex., 87th Leg., R.S. 409 (2021).

21 H.J. of Tex., 87th Leg., R.S. 2816 (2021).

22 See TEX. SEC’Y OF STATE, TEXAS ELECTION RESULTS,
https://results.texas-election.com/races (Election: 2021 November 2nd
Constitutional Amend.); see generally Shannon, supra note 13, at 574.
23 House Comm. on State Affs., Resolution Analysis, Tex. S.J. Res. 27,

87th Leg., R.S. (2021), available at https://capitol.texas.gov/tlodocs/87R/
analysis/pdf/SJ00027H.pdf.

18
religious services regardless of the government’s interest in those
prohibitions and limitations. During the legislative debates, one House
member proposed that the resolution be revised to include the “normal
language” that permits a regulation that is “narrowly tailored to serve
a compelling state interest,” but the proposal failed after the resolution’s
House sponsor replied that “there is a reason we have left that language
out.” 24 Even legislators who opposed the amendment understood that, if
it passed and was ratified, the government “could never restrict capacity
in a church service for any reason.” 25 And evidence supports that the
public understood this as well, including an editorial in the Houston
Chronicle that opposed the amendment because, if it were adopted, “no
state interests can ever justify limiting religious services.” 26
In support of its argument that the Clause does not forbid laws
that pass strict scrutiny, the City argues that every constitutional right
is and must be subject to some limitation. 27 The City contends that, just
as the Free Exercise Clause and the Freedom of Worship Clause are

24 Debate on Tex. S.J. Res. 27 on the Floor of the House, 87th Leg., R.S.

(May 11, 2021), available at https://house.texas.gov/videos/10097.
25 Dorothy Isgur, The 8 Texas constitutional amendments on your 2021

ballot, KXAN (Oct. 13, 2021), https://tinyurl.com/2hkenm4b (quoting
statement of Rep. Turner).
26 The Ed. Bd., Vote no on Proposition 3. ‘Religious freedom’ amendment

goes too far., HOUS. CHRON. (Oct. 14, 2021), https://tinyurl.com/y8cje5b5.
27 See Hudson Cnty. Water Co. v. McCarter, 209 U.S. 349, 355 (1908)

(“All rights tend to declare themselves absolute to their logical extreme. Yet all
in fact are limited by the neighborhood of principles of policy which are other
than those on which the particular right is founded, and which become strong
enough to hold their own when a certain point is reached.” (quoted in Robinson
v. Crown Cork & Seal Co., 335 S.W.3d 126, 147 (Tex. 2010))).

19
qualified by strict scrutiny even though, textually, they appear to be
categorical and absolute, the Religious Services Clause must also be
qualified by strict scrutiny. But this argument ignores the Clause’s
linguistic and historical context. The U.S. Supreme Court has applied
the strict-scrutiny test to implement its understanding of the original
meaning of the Free Exercise Clause based on that Clause’s linguistic
and historical context. As we have explained, the linguistic and
historical context of the Religious Services Clause is dramatically
different.
The City argues that the Clause must be subject to strict scrutiny,
else the government will be forced to favor individual religions over
others and over the public interest in violation of the federal
Establishment Clause. We agree with Perez, however, that this concern
relates to the scope of the Clause’s applicability, not to its force when it
does apply. 28 Based on the Clause’s text and context, we conclude that,

28 The City relies in part on the Supreme Court’s recent decision in

Catholic Charities Bureau, in which the Court reaffirmed that a “law that
differentiates between religions along theological lines is textbook
denominational discrimination” that violates the First Amendment’s
Establishment Clause. 605 U.S. ___, 2025 WL 1583299, at *6. As the City sees
it, construing the Clause’s force to be categorical “risks violating the
Establishment Clause by favoring one religious group over all other religious
and secular interest.” Unlike the laws at issue in Catholic Charities Bureau
and the decisions it reaffirms, however, the Clause in no way permits a law or
governmental decision that “grants a denominational preference by explicitly
differentiating between religions based on theological practice.” Id. at *7. To
the extent the Clause permits the City to make park improvements that
uniquely affect Perez’s religious practices, those effects result from “‘secular
criteria’ that happen to have a ‘disparate impact’ upon different religious
organizations.’” Id. (quoting Larson v. Valente, 456 U.S. 228, 247 n.23 (1982)).

20
when it applies, it categorically bars a governmental prohibition or
limitation on religious services without regard to whether it passes strict
scrutiny or any other test that balances the right against the
government’s interests.

We turn now to the second part of the certified question: Whether
the Religious Services Clause forbids “any limitation of any religious
service, regardless of the sort of limitation.” Every party and amici
agrees that the answer to this question is “No.” The difficulty, however,
is in identifying the boundaries of the Clause’s scope. As explained, we

The City also expresses some resistance to this distinction between the
Clause’s “force” and “scope,” noting Justice Kavanaugh’s observation that the
question of the extent to which a constitutional provision may permit
governmental regulation of a right it otherwise guarantees can be framed as
either an “exception” or a “limitation” to the right and “[e]ither way, the
analysis is the same—does the constitutional provision, as originally
understood, permit the challenged law?” United States v. Rahimi, 602 U.S. 680,
717 n.1 (2024) (KAVANAUGH, J., concurring). Noting that Perez himself
concedes that the Religious Services Clause does not forbid every law that
prohibits or limits religious services, the City suggests that the limitations
Perez himself accepts are actually limitations to the Clause’s force, which must
be recognized because of the government’s compelling interests that support
those limitations under the strict-scrutiny standard. We need not thoroughly
engage with the City on this issue to answer the question certified, however.
We agree with Perez that the certified question asks about both the Clause’s
force (“a categorical bar”) and its scope (“any limitation . . . regardless of the
sort”), and we answer the question accordingly. Based on the arguments
presented by both parties and amici, and considering the Clause’s text,
linguistic context, and historical context, we perceive a meaningful distinction
in this case, at least, between limitations on the types of governmental orders
to which the Clause applies and the power the government retains to deny the
right in the future. We identify the limits of the Clause’s scope based on the
intent of its drafters and ratifiers as exhibited through its text and context, not
based on how important the government (including the judiciary) may think a
governmental interest becomes in the future.

21
need not and will not attempt to comprehensively define those
boundaries in this case. Notwithstanding the potential benefits of
certified questions, 29 we must always remain alert to their risks. A case
that comes to us through a certified question does not arise from the
normal litigation process in Texas courts, and we often lack the benefit
of careful consideration of the issues by our lower courts. Indeed, we lack
subject-matter jurisdiction in the usual sense, and we can entertain the
certified question only because the people of Texas gave us that ability
through a constitutional amendment. See TEX. CONST. art. V, § 3-c(a).
Certified questions thus create the risk that we might answer a question
in the abstract, divorced from a factual record to illuminate the legal
question by grounding it in a real-world dispute.
As occurred here, the Fifth Circuit routinely “disclaim[s] any
intention or desire that the Supreme Court of Texas confine its reply to
the precise form or scope of the question certified.” Perez, 115 F.4th at
428 (quoting Janvey v. Golf Channel, Inc., 792 F.3d 539, 547 (5th Cir.
2015)). It is therefore unsurprising that we have restated a certified

29 Certified questions permit this Court and the federal courts to engage

in a “cooperative effort” that is “in the best interests of an orderly development
of our own unique jurisprudence, and to the bar, as well as in the best interests
of the litigants we concurrently serve.” Amberboy v. Societe de Banque Privee,
831 S.W.2d 793, 798 n.9 (Tex. 1992). Certification can be “a valuable tool for
promoting the interests of cooperative federalism.” Blue Cross & Blue Shield
of Ala., Inc. v. Nielsen, 116 F.3d 1406, 1413 (11th Cir. 1997). By “allow[ing] a
federal court faced with a novel state-law question to put the question directly
to the State’s highest court,” certification can “reduc[e] the delay, cut[] the cost,
and increas[e] the assurance of gaining an authoritative response.” Arizonans
for Off. English v. Arizona, 520 U.S. 43, 76 (1997). It is especially “imperative
that any state constitutional law issues . . . be decided by the state supreme
court.” Nielsen, 116 F.3d at 1413.

22
question when appropriate. See Sims v. Carrington Mortg. Servs.,
L.L.C., 440 S.W.3d 10, 15 (Tex. 2014). This certified question asks
simply whether the Religious Services Clause forbids “any limitation of
any religious service, regardless of the sort of limitation”—a question to
which, as everyone agrees, the answer is “No.” But the question
inherently asks us to define the Clause’s scope in a way that will give
“guidance” to the federal courts as they resolve the underlying case.
Janvey v. GMAG, L.L.C., 592 S.W.3d 125, 126 (Tex. 2019). Here, we are
asked to give guidance regarding the scope of a constitutional provision
that Texas adopted just a few years ago and that no Texas appellate
court has yet interpreted. The potential ramifications of our answer are
unknown but vast. However, we need not endeavor to comprehensively
define the Clause’s scope to provide a helpful answer here—nor should
any court undertake to make such comprehensive pronouncements
about the contours of a provision such as the Religious Services Clause
beyond those that are necessary to decide the case before it.
For purposes of answering this certified question, we need only
explain the boundaries the Clause’s text expressly lays out, reject the
boundaries the parties and amici propose, and address a single
limitation that may be helpful to the Fifth Circuit in resolving this case,
leaving further construction and application for future cases. 30

30 Our dissenting colleague would refuse to answer the certified
question, reading it narrowly to ask only whether the Religious Services
Clause’s scope is unlimited. Post at 4 (SULLIVAN, J., dissenting). We agree, of
course, that we should only answer the question asked, but doing so requires
providing at least a “general” answer that assists the federal court in resolving
the case. Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 n.3 (Tex. 2019). Our
role—our authority, even—in answering a certified question is not to resolve

23
Endeavoring to provide a helpful response to the Fifth Circuit while
avoiding unforeseen collateral consequences, we answer the question by
focusing on the facts presented in the record before us. Under those
facts, the question, at a minimum, is whether the Clause’s scope reaches
governmental actions taken to preserve and maintain public property
for the safety and enjoyment of the public. To that question, we answer,
“No.”
The text itself expressly limits the scope of the Clause’s
applicability in at least five ways. First, the Clause forbids only actions

the underlying case by applying our answer to the facts presented. Amberboy,
831 S.W.2d at 798. But to answer the question in a way that helps the federal
courts resolve the case, we must consider the facts the Fifth Circuit provides
us and answer the question within the context of those facts. Id. at 793
(answering whether a promissory note is a negotiable instrument when it
requires “interest to be charged at a rate that can be determined only by
reference to a bank’s published prime rate”). So, for example, when the Fifth
Circuit asked “whether a transferee on inquiry notice of fraudulent intent can
achieve good faith without investigating its suspicions,” we answered that
question, not “comprehensively,” but more specifically than merely addressing
“what constitutes good faith.” Janvey, 592 S.W.3d at 126. At times, providing
a helpful answer necessarily requires us to address whether a party possesses
the right it asserts. See, e.g., Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co.,
236 S.W.3d 765, 777 (Tex. 2007) (holding party in underlying case had “no right
of reimbursement through subrogation” because insured had no cause of action
against third party); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 357
(Tex. 1990) (holding party’s “constitutional attack on section 16.003(b) is not
premised upon restriction of a common-law cause of action, and, therefore,
necessarily fails the first prong of the open courts test”). But even when that’s
the case, “how our answer is applied in the case before the Fifth Circuit Court
of Appeals is solely the province of that certifying court.” Mid-Continent, 236
S.W.3d at 777. Here, we provide a helpful—but certainly not comprehensive—
explanation of the scope of the Religious Services Clause by holding it generally
does not address actions the government takes in the preservation and
management of public lands. It remains the role of the federal courts, however,
to decide exactly how that answer applies in this case.

24
by “this state or a political subdivision of the state.” TEX. CONST. art. I,
§ 6-a. Second, it forbids only actions through which the state or a
political subdivision may “enact, adopt, or issue a statute, order,
proclamation, decision, or rule.” Id. Third, the Clause protects only
“religious services”; it does not, for example, purport to protect the
broader concept of the “free exercise of religion.” Id. 31 Fourth, it protects
only religious services “conducted . . . in this state by a religious
organization established to support and serve the propagation of a
sincerely held religious belief.” Id. And fifth, it forbids only government
actions that “prohibit[] or limit[]” such services. Id.
For the most part, these express limitations on the Clause’s scope
of applicability are not controversial in this case. The parties’ debate
focuses primarily on the fifth requirement, presenting contrasting views
of what it means for a government rule or decision to “prohibit” or “limit”
a religious service. Relying in part on these express limitations and,
more so, on the Clause’s linguistic and historical context, the parties and
amici present various proposals to answer this question. We find none
of them entirely persuasive.
The City asserts, for example, that the Clause applies only to
government actions that subject religious services to “unequal
treatment” as compared to secular activities and thus requires that
religious services be deemed “essential” and “treated at least as

31 As the parties note, the Clause expressly protects “religious services,

including religious services conducted in churches, congregations, and places
of worship.” TEX. CONST. art. I, § 6-a (emphasis added). We agree with the
parties that this language provides non-exclusive examples of common
religious services the Clause protects.

25
favorably under the law as any secular activity.” In support of this
construction, the City relies primarily on the Clause’s historical context,
noting that the Legislature and the ratifiers were particularly concerned
that COVID lock-down orders prohibited and limited religious services
yet allowed many secular activities that were deemed “essential” to
continue relatively unimpeded. 32 While we agree that the Clause forbids
such unequal treatment of religious services, we conclude it obviously
does more.
The text itself does not contain language that ties its protection
to a comparison between religious services and secular activities or that
refers to treating religious services as “essential.” 33 Although some
proponents expressed the desire that religious services be treated
equally or as essential, 34 we find no support for the proposition that the
ratifiers understood that the Clause would allow the government to
restrict religious services so long as it also and equally restricted other

32 The City notes, for example, that the resolution’s sponsor in the
House explained that the resolution was necessary because “[i]n many
instances when liquor stores and casinos have been able to operate at full
capacity, churches have been closed down.” Debate on Tex. S.J. Res. 27 on the
Floor of the House, 87th Leg., R.S. (Mar. 25, 2021) (Statement of Rep. Leach).
33 By contrast, House Bill 525, which the Legislature also passed in

2021, added chapter 2401 to the Texas Government Code and declared that
religious organizations are “essential business[es]” in this State and their
activities are “essential activities” even during a declared state of disaster,
regardless of what any disaster order may say. TEX. GOV’T CODE § 2401.002.
The Religious Services Clause contains no such language.
34 One witness stated, for example, that one purpose of the Clause was

to ensure “that churches and places of worship are essential because faith itself
is essential.” Debate on Tex. S.J. Res. 27 in the Senate Comm. on State Affs.,
87th Leg., R.S. at 2:06:27 (Mar. 8, 2021), available at
https://tinyurl.com/bdjcusme.

26
types of activities. To the contrary, the historical context reveals that
the Clause was adopted not only in response to orders that treated
religious services less favorably than secular activities but in response
to orders like Travis County issued, which prohibited all “public or
private Community Gatherings” including “religious services.” See
Travis Cnty. Judge, Order [on COVID-19], at §§ 2–3 (issued Mar. 17,
2020), available at https://www.traviscountytx.gov/images/docs/covid-
19-order-2.pdf. We thus reject the City’s proposed construction of the
Clause’s scope.
The State argues that the Clause protects only the right to
“gather” for religious services. Noting that the text provides examples of
services “conducted in churches, congregations, and places of worship,”
and that the historical context includes many statements that the
Clause was adopted to address “government-mandated closure of
churches and other houses of worship,” 35 the State suggests that the
Clause forbids shut-down orders, capacity caps, and location restrictions

35 See, e.g., Tex. Leg. Council, Analyses of Proposed Constitutional
Amendments 14 (Aug. 2021), available at https://tinyurl.com/4hd5vcxy
(stating purpose was to forbid “limit[ing] in-person religious gatherings” or
“[c]losing houses of worship” and preserve the “ability to meet in person” by
“[a]llowing places of worship to remain open during public health
emergencies”); H.J. of Tex., 87th Leg., R.S. 2815–16 (2021) (quoting state
representative as saying purpose was to make clear that “the state cannot close
down or limit our houses of worship” and to protect the right “to congregate
with fellow believers, to attend church or mosque or synagogue, [and] to meet
with fellow believers in prayer and worship”), 2816 (quoting representative as
stating purpose was to ensure government cannot “keep you from going to
church”); Debate on Tex. S.J. Res. 27 on the Floor of the House, 87th Leg., R.S.
at 8:29:36–40 (May 11, 2021), available at https://tinyurl.com/yc8jvvpj (quoting
House sponsor as stating purpose was to prevent government from “shut[ting]
down” churches or keeping them from “gather[ing] to pray”).

27
that prohibit or limit religious “gatherings” but does not address
restrictions on what adherents can do when they are gathered. 36 Like
the parties and other amici, we disagree and conclude that the Clause
protects not only the right to gather for religious services but also
worship practices that are part of religious services. As the Senate and
House sponsors insist in their amicus brief, the historical context
demonstrates that the Legislature intended and the ratifiers understood
that the Clause would “protect not only the gathering of congregants but
their acts of worship which inherently comprise religious services.” 37 We
thus also reject the State’s proposed construction of the Clause’s scope.

36 Confusingly, the State asserts in its brief that the Clause would
prohibit “government orders that directly limit the nature of a service by, for
example, prohibiting ‘sing[ing],’ ‘shar[ing] the [L]ord’s supper,’ or ‘tak[ing] off
your shoes, even though your religion dictates that you do [so].’” Debate on Tex.
S.J. Res. 27 on the Floor of the House, 87th Leg., R.S. at 8:29:41–53 (Mar. 25,
2021), available at https://tinyurl.com/4tdaw5es. But the State insisted at oral
argument that the Clause addresses only “closing church doors” and not “what
goes on inside” and that laws prohibiting the taking of communion or singing
of hymns are “not within the scope of the amendment.” Oral Argument at
59:04–1:00:19; 1:01:50, Perez v. City of San Antonio, (Dec. 5, 2024)
(No. 24-0714), https://www.youtube.com/watch?v=zUiYQdX_Bp8.
37 As the Senate sponsor explained when addressing a meeting of
pastors and adherents, the Clause was intended to address governmental
orders that “tried to prohibit singing in places of worship.” See Chuck Lindell,
Christians: Change laws to protect religious gatherings in pandemic, AUSTIN
AM.-STATESMAN (Mar. 8, 2021), https://perma.cc/Y7Q9-2FQ9 (quoting
statement of Sen. Hancock). The House sponsor similarly explained that the
Clause would protect the freedom to both “assemble” and “worship.” Comm. on
State Affs., Tex, House of Representatives, 87th Leg., R.S. (Mar. 25, 2021) at
1:42:13, available at https://house.texas.gov/videos/7964 (bill layout of Rep.
Leach). And the Clause was proposed in response, at least in part, to the U.S.
Supreme Court’s refusal to enjoin a shut-down order that included a
“prohibition on singing and chanting during indoor service.” S. Bay II, 141
S. Ct. at 716.

28
Perez agrees that the Clause’s scope is limited, not only by the
text’s plain language imposing the five limitations described above, but
also by what Perez refers to as “longstanding interpretive principles of
Texas constitutional law.” According to Perez, the Clause addresses
more than just “unequal treatment” and religious “gatherings” but “does
not protect religious services that long-existing background principles of
law would have forbidden.” Perez asserts that, just as the
constitutionally protected right to work and earn a living does not
encompass a right to engage in occupations “long deemed ‘inherently
vicious and harmful,’” Tex. Dep’t of State Health Servs. v. Crown Distrib.
LLC, 647 S.W.3d 648, 654–55 (Tex. 2022) (quoting Murphy v. California,
225 U.S. 623, 628 (1912)), and the Free Exercise Clause does not permit
churches to commit tortious conduct “with impunity,” Pleasant Glade
Assembly of God v. Schubert, 264 S.W.3d 1, 12 (Tex. 2008), the Religious
Services Clause does not extend to long-recognized limitations on
religious freedom. As examples, Perez asserts that the Clause does not
extend to and protect a religious service that prevents the government
from responding to a “true emergency” or “exigency,” 38 that violates
otherwise applicable private property law, 39 that interferes with the

38Perez asserts, for example, that the Clause does not forbid the
government from interfering with a religious service if truly necessary to
respond to an imminent flood or falling tree.
39 Perez asserts, for example, that the Clause does not forbid the
government from interfering with a religious service that violates laws against
trespassing or that creates a public or private nuisance.

29
rights of the government or the public to use public property, 40 or that
violates well-established criminal law and procedure. 41
Although we might agree in some cases that the Clause does not
protect such religious services, we cannot accept Perez’s amorphous
description of the Clause’s scope, for several reasons. First, nothing in
the text or the context provides support for the limitation as Perez
articulates it. Second, defining the scope as being limited by
“longstanding interpretive principles” provides no adequate objective
standard and instead leaves it in the hands of the government to decide
in the future what the Clause protects, instead of honoring the decision
the people already made in the past. And third, the standard provides
no certainty or predictability on which the government may base its
decisions, and on which religious organizations may assert their rights,
in the future.
Having concluded that the scope of the Religious Services Clause
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, we
nevertheless agree with the parties and amici that its scope is not

40 Perez asserts, for example, that the Clause does not forbid the
government from interfering with a religious service in a public park if
necessary to ensure other members of the public can also use and enjoy the
park. He also asserts that the Clause would not require this Court to allow a
religious organization to use its courtroom for its religious services.
41 Perez asserts, for example, that the Clause does not forbid the
government from prohibiting human sacrifices or imprisoning a convicted
clergy member, even if such sacrifices or the clergy member’s presence is
essential to a religious organization’s religious services.

30
unlimited. 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. And the historical context also confirms that those who
drafted and proposed the amendment did not intend that its scope be
unlimited.
The House sponsor, for example, stated during the floor debates
that “existing local laws and ordinances and rules dealing with the fire
code, with health and safety hazards, with zoning restrictions, those
with criminal justice and public safety laws, those would still be able to
be enforced and this constitutional amendment does nothing to affect
those.” Debate on Tex. S.J. Res. 27 on the Floor of the House, 87th Leg.,
R.S. (Mar. 25, 2021) (Statement of Rep. Leach). He went on to say he did
not intend the amendment to address “every single instance where a fire
code may be violated or where a police officer may need to enter a church
to do his or her job.” Id. As another House member told the committee,
“I don’t think there’s anybody, any court, anywhere that would read this
to say that if there’s a true health and safety issue, that you cannot
enforce that health and safety issue.” Id. (Statement of Rep. King).
Although we need not address here whether the Clause reaches
fire codes, police activity, or “true health and safety issue[s],” we can
conclude with assurance, based on the Clause’s text and historical
context, that it generally forbids governmental enactments that prohibit
people from gathering for a religious service (like the COVID lock-down

31
orders), restrict the number or relationships of people who can gather
for a religious service (like the COVID orders imposing capacity caps),
or regulate the activities in which people may engage when they gather
(like the COVID orders prohibiting singing, chanting, or communion).
Beyond that, to provide a helpful answer to this certified question, we
need only consider and address the facts as the Fifth Circuit presents
them to us. 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 new Religious
Services Clause.
Unlike the COVID orders that gave rise to the adoption of the
Religious Services Clause, the governmental decisions at issue here
involve the preservation and maintenance of public property that is
owned and managed by the government, not by the Church or its
members. Perez agrees that 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. And Perez concedes the Clause does not prevent the City from

32
selling this very property to a private developer 42 or from taking actions
that are necessary to ensure that all members of the public can access
and enjoy the Lambert Beach area equally with the Church. But in
Perez’s view, for as long as the City owns the property, the Clause at
least forbids the City from taking any action that would deprive the
Church of trees and birds that are necessary components of the Church’s
religious services.
These arguments implicate thorny issues that courts have
previously addressed under the Free Exercise Clause and the federal
RFRA. On the one hand, as Perez asserts, courts have recognized that
governments hold public parks in trust for the benefit and use of the
public and must make those spaces available to the public without
discriminating against any who desire to use them. See Hague v. Comm.
for Indus. Org., 307 U.S. 496, 515 (1939). But as the City insists, the
courts have also recognized that the public’s right to use a public park
“is not absolute, but relative, and must be exercised in subordination to
the general comfort and convenience, and in consonance with peace and
good order.” Id. at 515–16.
Two cases particularly illustrate the tensions that can exist
between religious liberties and the use of public lands. In the first, Lyng
v. Northwest Indian Cemetery Protective Ass’n, the U.S. Supreme Court
held that the Free Exercise Clause did not prohibit the government from
harvesting timber and constructing a road on publicly owned land even

42 Although Perez asserts that original deed restrictions forbid the City

from selling the property to a private developer, he concedes that the Religious
Services Clause does not have that effect.

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though doing so would cause “irreparable damage” to areas long
considered by indigenous peoples to be “sacred” and would “have severe
adverse effects on the practice of their religion.” 485 U.S. 439, 447
(1988). The Court concluded that the Free Exercise Clause did not forbid
the governmental actions because the plaintiffs would not “be coerced
by the Government’s action into violating their religious beliefs; nor
would either governmental action penalize religious activity by denying
any person an equal share of the rights, benefits, and privileges enjoyed
by other citizens.” Id. at 449. Observing that the “government simply
could not operate if it were required to satisfy every citizen’s religious
needs and desires,” the Court reasoned that accommodating the
plaintiffs’ religious beliefs under these circumstances “could easily
require de facto beneficial ownership of some rather spacious tracts of
public property.” Id. at 452–53. “Whatever rights the Indians may have
to the use of the area,” the Court concluded, “those rights do not divest
the Government of its right to use what is, after all, its land.” Id. at 453.
The second case that particularly illustrates the tensions that can
arise between religious liberties and the use of public land is Apache
Stronghold v. United States, 101 F.4th 1036 (9th Cir. 2024) (en banc),
cert. denied, No. 24-291, 2025 WL 1496472 (U.S. May 27, 2025). In
Apache Stronghold, the Ninth Circuit relied on Lyng to hold that neither
the Free Exercise Clause nor the federal RFRA prohibits the
government from selling public lands to a mining company even though
the sale will result in the destruction of an area indigenous peoples
believe is a “‘sacred place’ that serves as a ‘direct corridor’ to ‘speak to
[their] creator,’” and at which they have engaged in “religious practices”

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for “at least a millennium.” Id. at 1044. The Ninth Circuit reasoned that
the Free Exercise Clause does not prohibit the sale because, as in Lyng,
the sale will not “coerce” the adherents “into acting contrary to their
religious beliefs” or “discriminate” against them or treat them
unequally. Id. at 1051–52. And the court held that RFRA does not
prohibit the sale for the same reasons, because the concept of a
“substantial burden” on religious exercise under RFRA “must be
understood as subsuming, rather than abrogating, the holding of Lyng.”
Id. at 1063.
Perez raises several arguments distinguishing Lyng and Apache
Stronghold and explaining why those decisions do not support the City’s
position. But we need not address them here. When the Fifth Circuit
panel withdrew its original opinion in this case, it elected to “pretermit
further consideration” of Perez’s claims under the Free Exercise Clause
and the Freedom of Worship Clause “pending resolution of” this certified
question asking only about the Religious Services Clause. Perez, 115
F.4th at 427. Expressing no opinions as to those claims, we observe only
that although the Religious Services Clause forbids the government
from prohibiting or limiting religious services, nothing in its text
purports to address governmental preservation and management of
public lands or the tensions between such activities and religious
liberties. To whatever extent we could construe the text broadly to
encompass Perez’s claims, 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.

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III.
Answer
For these reasons, we answer the certified question as follows:
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. We express no opinion on whether the Free Exercise
Clause or the Texas RFRA protect the religious liberties Perez asserts,
and we leave it to the federal courts to apply our answer in the
underlying case.

Jeffrey S. Boyd
Justice

OPINION DELIVERED: June 13, 2025

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