Beyond the Sanctuary: Defining the Limits of Texas’s Religious-Services Clause on Public Lands

1. Introduction

Perez v. City of San Antonio, No. 23-50746 (5th Cir. Aug. 13, 2025) is a sweeping decision at the intersection of Native American sacred-site protection, state constitutional innovation, and classic Free Exercise doctrine. Gary Perez and Matilde Torres—leaders in the Lipan-Apache Native American Church—challenged the City’s $7.75 million renovation of Brackenridge Park, alleging the work would destroy the “spiritual ecology” of their sacred riverbend by removing heritage cypress trees and deterring the migratory cormorants central to their creation story.

Four distinct legal theories were advanced:

Texas Religious Freedom Restoration Act (TRFRA)
First Amendment Free Exercise Clause
Article I, § 6 (Freedom of Worship) of the Texas Constitution
Article I, § 6-a (2021 “Religious-Services Clause”) of the Texas Constitution

A district judge granted narrow relief—scheduled ceremonial access—but refused to halt tree removal or “rookery management.” On expedited appeal, the Fifth Circuit:

Declared the access claim moot;
Held no likelihood of success under TRFRA, the Free Exercise Clause, or § 6;
Invoked a freshly minted Texas Supreme Court answer to conclude § 6-a does not constrain state action related to “preservation and management of public lands.”

2. Summary of the Judgment

With Judge Carl E. Stewart writing for a unanimous panel, the court:

Affirmed the district court’s partial injunction (scheduled group access only).
Dismissed the individual-access claim as moot because the City voluntarily removed fencing and hazards.
Rejected the substantive challenges to tree removal and anti-nesting plans, finding (a) an insubstantial burden under TRFRA or (b) in the alternative, satisfaction of strict-scrutiny (compelling interests in public safety, historic preservation, ADA compliance, water quality, and compliance with the Migratory Bird Treaty Act, met by least-restrictive means).
Applied the Texas Supreme Court’s answer to the certified question, holding § 6-a’s “absolute and categorical” protection of religious services stops at the edge of governmental land-management decisions.
Denied the appellants’ emergency injunction pending appeal.

3. Analysis

3.1 Precedents Cited and Their Influence

Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009) – Bedrock Fifth Circuit TRFRA analysis; instructs courts to scrutinise burdens case-by-case and to examine less-restrictive alternatives—used by both majority (to frame test) and dissent (to accuse City of non-compliance).
Barr v. City of Sinton, 295 S.W.3d 287 (Tex. 2009) – State high-court decision clarifying “substantial burden” and strict-scrutiny under TRFRA; majority relies on its “real and significant” requirement; dissent uses it to argue heavy protection.
A.A. ex rel. Betenbaugh v. Needville ISD, 611 F.3d 248 (5th Cir. 2010) – Explains that even partial restrictions may be “substantial” when alternatives are “severely restricted.” Majority distinguishes on “indirectness.”
Fulton v. City of Philadelphia, 593 U.S. 522 (2021) – Quoted for the principle that “if government can achieve its interest in some other way that does not burden religion, it must.” Majority says City met that demand; dissent says it ignored it.
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) – Core strict-scrutiny template; cited for “interests of the highest order.”
Employment Division v. Smith, 494 U.S. 872 (1990) – Not adopted by Texas; used to underscore state’s broader protection.
Certified Question Opinion — In re Perez, No. 24-0714, 2025 WL 1675639 (Tex. June 13 2025) – Crucial precedent holding that § 6-a does not apply to public-lands management; effectively narrows the 2021 constitutional amendment.

3.2 Legal Reasoning of the Panel

Mootness & Voluntary Cessation: Because the City permanently removed hazards and fencing, individual-access claims no longer presented a live case or controversy; no reasonable expectation of recurrence => voluntary-cessation exception inapplicable.
TRFRA Analysis (a) Burden – Majority finds removal of 48 trees and seasonal bird deterrence across 2 acres within a 343-acre park “indirect” and therefore not “real and significant.” (b) Strict Scrutiny fallback – Even assuming a burden, City satisfies compelling-interest (public safety, historic-wall integrity, ADA compliance, water quality, MBTA) and least-restrictive-means (cantilevered wall chosen after multi-disciplinary review; rookery management limited to 2-acre zone, non-lethal, seasonal, science-based).
Free Exercise (Federal) & § 6 (Texas): Court assumes strict scrutiny applies but imports the same analysis; therefore claims fail.
§ 6-a Religious-Services Clause: Bound by Texas Supreme Court holding that the clause “does not extend to governmental actions for the preservation and management of public lands.” Case falls squarely outside the clause.

3.3 Impact of the Judgment

A definitive perimeter for § 6-a: Until now the 2021 amendment’s reach was uncertain. The Fifth Circuit, following the Texas Supreme Court, confirms it is categorically limited; worshippers cannot invoke it to halt capital projects on public property.
Guideposts for Native and minority faith claims: The decision elevates the evidentiary threshold for showing a substantial burden where the state acts on its own land. Litigants must document direct, site-specific prohibitions rather than ecological or aesthetic degradation alone.
Municipal project planning: Cities may move forward with park/historic-site renovations if they (a) generate meticulous administrative records, (b) consult broadly, and (c) document public-health and safety justifications.
Circuit split ripening? The dissent (Judge Higginson) aligns with recent Justice Gorsuch statements (e.g., Apache Stronghold cert. dissents) arguing that preventing ceremonies at unique sacred sites is inherently a substantial burden. This tension with the majority’s “indirect burden” rationale may invite Supreme Court review.

4. Complex Concepts Simplified

TRFRA: Texas statute mirroring the 1993 federal RFRA. Requires strict scrutiny for any “substantial burden” on religious exercise by state/local entities.
Strict Scrutiny: Highest constitutional test: government must show (1) a compelling interest, and (2) that the challenged action is the least restrictive means of achieving it.
Religious-Services Clause (Tex. Const. art. I § 6-a): Added after COVID-19 closures; bars the state from “prohibit[ing] or limit[ing] religious services.” Perez clarifies it protects worship events, not natural features or ecologies on public land.
Rookery Management: Techniques (noise makers, lasers, effigies, etc.) used to discourage massive bird colonies in urban parks. In this case motivated by health concerns (histoplasmosis, E. coli in river).
Cantilevered Wall vs. Pier-and-Spandrel: Competing engineering methods to shore up 1920s river walls. City chose cantilevered walls to save cost, comply with historic-preservation standards, and spare as many large trees as feasible.
Migratory Bird Treaty Act: Federal statute making it unlawful to disturb active nests of protected species; necessitates pre-nesting deterrence if construction will fell trees.
Voluntary-Cessation Doctrine: A case becomes moot only if it is “absolutely clear” the challenged conduct will not recur; City met that heavy burden by permanently removing fencing.

5. Conclusion

Perez v. City of San Antonio stitches together state constitutional innovation, Native American religious claims, and municipal infrastructure needs. The Fifth Circuit, reinforced by Texas’s highest court, has drawn a bright line: Article I, § 6-a shields religious services, not the natural attributes of public lands on which such services might depend. For future litigants, the decision underscores three lessons:

Proving a “substantial burden” under TRFRA now requires direct restraints or an evidentiary showing that alternatives are “severely restricted”—environmental degradation alone may not suffice.
Governments must keep robust records demonstrating that less-restrictive alternatives were genuinely considered; failure to do so can still doom a policy under strict scrutiny.
Texas’s pandemic-era Religious-Services Clause, while “absolute and categorical,” is geographically—and now judicially—confined; policy makers retain authority to manage parks, rivers, and historic landmarks even when such management displeases worshippers.

Whether the Supreme Court will revisit the meaning of “substantial burden” in sacred-site disputes remains to be seen, but Perez unquestionably resets the doctrinal landscape for religious-liberty litigation in the Lone Star State and beyond.