In an opinion issued last Friday, the Texas Supreme Court used a Texas statute to protect the free exercise of religion which a city attempted to curtail by an ordinance.
The case was Pastor Rick Barr and Philemon Homes, Inc. v. City of Sinton, ___ S.W.3d ___ (Tex. 2009) (6/19/09). In it, a resident of Sinton had opened a halfway house offering “free housing and religious instruction in two homes he owned. In response, the city passed a zoning ordinance that not only precluded the use of the homes for that purpose but effectively banned the ministry from the city.” The Supreme Court ruled that the city had violated the Texas Religious Freedom Restoration Act (TRFRA).
The ministry had a statement of faith and offered Christian counseling and study; it did not accept violent offenders, and had no contract with any governmental organization. When the city passed a certain zoning ordinance, it included distance requirements that virtually eliminated any location for the ministry in the city.
The U.S. Supreme court case of “Smith had held that under the Free Exercise Clause of the First Amendment, neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest”. “(In Smith, it was peyote consumption.) Congress therefore provided more protection by statute (RFRA), which applied to states as well as the federal government, but “City of Boerne held that in extending RFRA to the States, Congress exceeded its enforcement authority under Section 5 of the Fourteenth Amendment.”
“Smith’s construction of the Free Exercise Clause does not preclude a state from requiring strict scrutiny of infringements on religious freedom, either by statute or under the state constitution,” So, Texas passed TRFRA, a similar statute, which provides that “government ‘may not substantially burden a person’s free exercise of religion [unless it] demonstrates that the application of the burden to the person . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that interest.'” The protection of TRFRA is in addition to federal statutory and constitutional law as well as the Texas Constitution. Since TRFRA was passed in the “spirit of protection of religious freedom, we will consider decisions applying the federal statutes germane in applying the Texas statute.”
“[Z]oning laws cannot be used to exclude churches from all residential districts in some circumstances.” “Schad held that a borough could not use zoning laws to prohibit all live entertainment, including live adult entertainment, within its borders. Surely the free exercise of religion is entitled to no less protection than adult entertainment.” In particular, zoning ordinances are included within the purview of TRFRA. So, strict scrutiny will apply.
Here, while the Court “must accept the trial court’s fact findings supported by the evidence, the ultimate answers determine the legal rights protected by the Act and are thus matters of law.”
A court cannot “‘determine the ‘centrality’ of religious beliefs before applying a ‘compelling interest’ test.'” “Under Smith, the Free Exercise Clause does not require strict scrutiny for religious activity affected by neutral laws of general application, but TRFRA imposes the requirement by statute.”
In this case, the “record easily establishes that Barr’s ministry was ‘substantially motivated by sincere religious belief’ for purposes of the TRFRA.”
The phrase “substantially burden” is not defined. “Absent any special meaning, we use ordinary meanings in common parlance. . . . Thus defined [by Webster’s], ‘substantial’ has two basic components: real vs. merely perceived, and significant vs. trivial.” So, “the focus is on the degree to which a person’s religious conduct is curtailed and the resulting impact on his religious expression. . . [measured] from the person’s perspective, not from the government’s.” This requires a “case-by-case” analysis. Here, because alternate locations were almost non-existent, the zoning ordinance “substantially burdened Barr’s ministry.” The five “pre-Smith” cases cited by the city “illustrate that the existence and degree of a zoning restriction’s burden on religious exercise are practical matters to be determined based on the specific circumstances of a particular case. A restriction need not be completely prohibitive to be substantial; it is enough that alternatives for the religious exercise are severely restricted.”
The city claimed that zoning “‘is a compelling state interest.’ That position . . . has been rejected by this Court and by the Supreme Court.” It is a legitimate interest, but is not “superior to fundamental, constitutional rights, such as the free exercise of religion. . . .” The balancing test must be applied “‘to the person.'” While “TRFRA places the burden of proving a substantial burden on the claimant, it places the burden of proving a compelling state interest on the government.” Here, there were no complaints regarding the halfway house, and the city did not try to enforce the ordinance for more than one year. The city therefore failed to establish “a compelling interest.” This does not mean that “government never has a compelling interest in zoning for religious use of property or in regulating halfway houses operated for religious purposes.” But in this case the city failed to carry its burden.
Finally, the city “made no effort to show” that its ordinance was “the least restrictive means of furthering [a compelling] interest.” So, “applied to Barr’s ministry, [the ordinance] violates TRFRA.”