Updates to our Terms of Use

We are updating our Terms of Use. Please carefully review the updated Terms before proceeding to our website.

Friday, December 8, 2023 | Back issues
Courthouse News Service Courthouse News Service

Texas voters to decide if religious services deserve constitutional protection

Texas is one of more than 20 states where legislators proposed or passed bills this year to let churches remain open during public health emergencies.

HOUSTON (CN) — Should houses of worship be allowed to stay open amid public health crises or natural disasters? Even pastors are divided on this question. Texas voters will decide on Nov. 2 if such autonomy should be enshrined in the state constitution.

Proposition 3 seems straightforward: It would add a new section to the Texas Constitution barring the state or local governments from prohibiting or limiting religious services.

But Lee Kleinman, a Dallas community leader, is worried it could give churches providing shelter to homeless people during storms, for instance, cover to ignore code restrictions limiting how many people can stay there overnight. As some churches may argue that, according to their doctrine, ministering to the homeless is a religious service.

Some civil rights attorneys agree.

“Proposition 3 is extreme and unnecessary,” said Heather Weaver, senior staff attorney for the American Civil Liberties Union’s Program on Freedom of Religion and Belief.

She said it would give houses of worship an absolute right to hold services during an emergency.

“No matter how dangerous it may be and no matter the nature of the emergency, whether a hurricane, tornado, wildfire, pandemic, or some other urgent situation,” she added.

Kleinman, then a member of the Dallas City Council, laid out these concerns before a Texas House committee in March and was scolded by Republican state Representative Phil King.

“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 can’t enforce that issue … And it’s really disappointing that you would try to stretch it like this,” King said to applause from churchgoers in the audience.

Clapping in Texas Legislature hearings is unusual and discouraged. Yet it was fitting for a resolution ultimately approved by 28 out of 31 state senators, and more than 100 House members, giving it the two-thirds vote needed in each chamber to put the constitutional amendment on the November ballot.

The bipartisan support is not surprising, according to Eric McDaniel, a professor of government at the University of Texas-Austin.

“Religion, especially in Texas, is very important to people and no politician wants to be seen as anti-religion. … Going after religion in Texas is probably worse than going after Social Security,” he said.

As the coronavirus started to spread in Texas in March 2020, Governor Greg Abbott, a proud practicing Catholic, ordered schools and nonessential businesses to close and barred social gatherings of over 10 people, in accord with federal guidance.

“All critical infrastructure will remain operational,” he declared. He did not mention houses of worship, leaving them confused if they could stay open.

Two weeks later, the two-term Republican governor issued another order deeming religious services “essential.” But he said churches should follow Centers for Disease Control and Prevention guidelines and limit them to no more than 10 people.

Coming right before Palm Sunday, the start of Holy Week for Christian congregations that leads up to Easter Sunday, Abbott’s order was ignored by a handful of churches across the state.

Nearly 100 members of Glorious Way Church in Houston gathered for a Palm Sunday service. Most did not wear masks.

“The government’s powers stop at the church’s doors,” the church’s attorney told Houston’s CBS affiliate at the time.

Several Houston-area pastors, joined by local Republican Party leaders, sued Abbott over the church restrictions, accusing him of imposing “draconian, unconstitutional requirements.”

Faced with a growing chorus from Republican politicians--including two who are running against him in the 2022 primary for the governor’s seat — and business owners that he was hurting the economy and abusing his authority, Abbott was one of the first governors to lift all Covid-19 restrictions this spring.


And he has swung far in the other direction. He now maintains fighting the coronavirus is a matter of personal responsibility, not government mandates. He has barred local governments and school districts from issuing mask mandates and took them to court for defying him.

He has also pivoted on church autonomy.

Abbott signed a Republican-sponsored bill in June prohibiting government agencies and officials from ordering houses of worship to close.

So why do proponents believe a constitutional amendment is needed that would give churches the same protections?

Jonathan Saenz, an attorney and president of Texas Values, an offshoot of the Christian conservative legal group First Liberty Institute, said putting it in the state constitution makes the protection more permanent than a bill, which a subsequent state Legislature could repeal with a simple majority vote.

Constitutional amendment propositions, on the other hand, usually need bipartisan support to garner the two-thirds of votes from lawmakers required for placement on the ballot, Saenz explained.

“And then you also know the people have had an opportunity to go to the ballot and say this is what they believe in. … And that’s why I think you’re going to see an overwhelming number of people vote to support Prop. 3,” Saenz said.

Texas is one of 20 states where legislators proposed or passed bills this year to let churches stay open during public health emergencies, Deseret News reported in February.

McDaniel, the University of Texas professor, said the movement is driven by Americans, especially Republicans, who believe religion is under attack.

“They want to protect or even advance the rights or interests of their religion. … . Expect these types of amendments to pop up in other states,” he said.

And experts say the U.S. Supreme Court is increasingly favorable to claims states are infringing on religious freedom.

In May and July of last year, the court, in 5-4 rulings, allowed the governors of California and Nevada to restrict attendance at religious services to stop the spread of Covid-19.

But the court’s stance changed following the death of Justice Ruth Bader Ginsburg, and President Donald Trump replacing her with conservative Justice Amy Coney Barrett. Barrett, a devout Catholic, cast the deciding vote in a 5-4 order in November striking down religious service restrictions imposed to prevent Covid-19 outbreaks by New York Governor Andrew Cuomo.

In February, the high court’s six conservative justices nixed California’s total ban on indoor religious services.

In Texas, most churches followed CDC guidelines last year and moved to virtual services.

Reopening their doors this year, some have struggled to build their congregations back up to the size they were before the pandemic.

Michael Matthew launched Eternal Rock Church in Houston with his wife on Jan. 26, 2020. Six weeks later, they moved services online.

Matthew said he did not agree with Trump — raring for the country to reopen as the economy tanked amid Covid lockdowns in late March 2020 — when he said he wanted to drop federal social distancing advisories and see churches packed by Easter Sunday.

“I think we have to really trust the science of it and trust the research of it. I think we’d be safe if we did that,” Matthew said.

But the pastor wonders if some people have gotten too accustomed to the pandemic-induced homebody lifestyle to return to church. He and his wife reopened theirs for in-person services on Mother’s Day.

“On a good Sunday [before the pandemic] we’d have 80 people and last Sunday we had 35,” he said. “You know I can’t predict anything as far as attendance right now. I scratch my head sometimes wondering what’s going on.”

Matthew noted less people showing up for his Sunday services has also reduced the amount of donations the church receives. But he has no plans to shutter it because as the owner of a dump truck company he does not depend on it for his personal finances.

“I believe God is going to take care of us,” he said.

Follow Cameron Langford on Twitter

Follow @cam_langford
Categories / Government, Politics, Religion

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.