Perez v. City of San Antonio

• Court: Texas Supreme Court
• Writing for the Court: Justice Boyd
• Citation: Perez v. City of San Antonio, 715 S.W.3d 709 (Tex. 2025)
• Docket Number: 24-0714
• Decision Date: 13 June 2025
• Parties: Gary PEREZ and Matilde Torres, Appellants, v. CITY OF SAN ANTONIO, Appellee
• topic: Civil Rights,Administrative Law,Constitutional Law,Indigenous Law

715 S.W.3d 709

Gary PEREZ and Matilde Torres, Appellants,

v.CITY OF SAN ANTONIO, Appellee

No. 24-0714

Supreme Court of Texas.

Argued December 4, 2024

OPINION DELIVERED: June 13, 2025

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

Robert Dunikoski II, Castaneda + Heidelman, LLP, Dallas, John A. Meiser, Domenic Canonico, Lindsay and Matt Moroun, Religious Liberty Clinic, Notre Dame Law School, Notre Dame, IN, for Amici Curiae International Council of Thirteen Indigenous Grandmothers, Logan, Carol.

Kyle D. Hawkins, Joshua Morrow, Lehotsky Keller Cohn LLP, Austin, Kelly J. Shackelford, Hiram S. Sasser III, Jeffrey C. Mateer, David Hacker, First Liberty Institute, Plano, for Amicus Curiae First Liberty Institute.

John Litzler, Baptist General Convention of Texas, Dallas, for Amicus Curiae The Baptist General Convention of Texas.

Kelly Hancock, Texas Senate, District 9, Austin, Pro Se.

Meagan Corser, W. Kenneth Paxton, William Cole, Brent Webster, Aaron Nielson, Office of the Attorney General, Austin, for Amicus Curiae State of Texas.

Jeff Leach, Texas House of Representatives, Dist. 67, Austin, Pro Se.

John Greil, Steven Collis, Austin, Timothy Villari, Mark Rasmussen, Paulina Nenclares, Margaret I. Lyle, Chance McCraw, Jones Day, Dallas, Jonathan Guynn, Dallas, for Appellants.

Steven C. Levatino, Levatino | Pace LLP, Austin, for Amicus Curiae Texas Catholic Conference of Bishops.

Sara Murray, Natalie Wilson, Fred Riley Jones, Langley & Banack, Inc., San Antonio, Jane M. N. Webre, Scott Douglass & McConnico, LLP, Austin, for Appellee.

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.

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. TheChurch 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 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 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 government action that “prohibits or limits religious services” under the new clause, Article I, Section 6-a of the Texas Constitution. Perez 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 Frith 586, 614 (Sth 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

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

II. The Texas Religious Services Clause

[1–3] 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,” Hams 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....