Perez v. City of San Antonio: Limiting Texas’s Religious Services Clause and Applying Strict Scrutiny to Public Land Management

Perez v. City of San Antonio: Limiting Texas’s Religious Services Clause and Applying Strict Scrutiny to Public Land Management

I. Introduction

In Perez v. City of San Antonio, No. 23-50746 (5th Cir. Dec. 12, 2025), the United States Court of Appeals for the Fifth Circuit revisited a high-profile clash between indigenous religious practitioners and municipal land-use planning in San Antonio’s Brackenridge Park.

The case arises from the City’s multi-million-dollar bond project to repair historic river retaining walls, improve accessibility, and manage dense bird rookeries in the Park. Members of the Lipan-Apache Native American Church—Gary Perez and Matilde Torres—contend that these activities would destroy the “spiritual ecology” of a sacred riverbend where they conduct religious ceremonies, thereby violating:

  • the Texas Religious Freedom Restoration Act (TRFRA),
  • the First Amendment’s Free Exercise Clause,
  • Article I, § 6 of the Texas Constitution (freedom of worship), and
  • Article I, § 6-a of the Texas Constitution (the “religious-services-protections” or Texas Religious Services Clause).

After initially issuing an opinion (later withdrawn), the Fifth Circuit certified a novel state constitutional question to the Supreme Court of Texas: what is the scope of the new Texas Religious Services Clause? The Texas Supreme Court’s answer significantly narrows the reach of that clause, holding that while it is categorical when it applies, it does not extend to “governmental actions for the preservation and management of public lands.”

With that guidance, the Fifth Circuit substitutes this new opinion, again affirming the district court’s partial denial of a preliminary injunction and denying an injunction pending appeal. The majority’s reasoning has two principal pillars:

  1. A state-law holding: the Texas Religious Services Clause simply does not apply to this kind of public-land management dispute, based on the Texas Supreme Court’s answer.
  2. A strict-scrutiny analysis under TRFRA (and, by extension, under the federal Free Exercise Clause and Texas freedom-of-worship provision), concluding that the City’s tree-removal and rookery-management plans are supported by compelling interests and represent the least restrictive means, and that plaintiffs have not shown a “real and significant” substantial burden on their religious exercise.

Judge Higginson files a short concurrence/dissent, incorporating his earlier, more extensive dissent from the withdrawn opinion and reiterating that the majority underestimates the burden on the plaintiffs’ religious expression.

II. Factual and Procedural Background

A. The Plaintiffs and Their Sacred Site

The plaintiffs, Gary Perez and Matilde Torres, are members of the Lipan-Apache Native American Church and of Indigenous communities with historical ties to the San Antonio region. The district court found, and the City did not dispute, that their religious beliefs are sincerely held.

Their beliefs center on:

  • The Blue Hole – an origin spring where life in the San Antonio region is believed to have begun.
  • Mythic beings – a blue panther spirit residing in the Blue Hole and a cormorant spirit whose tail-shed droplets spread life along the San Antonio River Valley.
  • The riverbend at Lambert Beach – a bend in the San Antonio River, within Brackenridge Park, which they believe mirrors the constellation Eridanus and forms a bridge between physical and spiritual worlds.

Perez and Torres testify that:

  • Certain essential religious ceremonies must be performed only at this specific riverbend.
  • The site’s religious efficacy depends on its “spiritual ecology”: the presence of particular trees, nesting cormorants, and other natural elements.
  • Without specific trees and cormorant nesting in this area, key ceremonies cannot be properly conducted.

B. The Park, the Project, and the Spiritual Ecology

Brackenridge Park is a 343-acre public park in San Antonio with extensive recreational and cultural facilities. It also occupies an area used by Indigenous peoples for thousands of years.

The dispute centers on a small area within the Lambert Beach section:

  • Plaintiffs call it the “Sacred Area”: roughly 20 x 30 feet between two cypress trees along the southern riverbank.
  • The City calls it the “Project Area”: an approximately two-acre site of planned repairs and modifications.

In 2016, San Antonio voters approved an $850 million bond package, of which approximately $7.75 million was slated for improvements to Brackenridge Park (the “Bond Project”). The City’s plans for the Project Area include:

  • Repairing historic retaining walls along the San Antonio River,
  • Repairing the historic Pump House, and
  • Constructing an ADA-compliant ramp.

Because of engineering, safety, and regulatory constraints, the City concluded that significant tree work was unavoidable:

  • Removal of 46–48 trees,
  • Relocation of 20–21 trees elsewhere in the park,
  • Preservation in place of about 16 trees, and
  • Planting at least 22 new trees in the Project Area.

In addition, the City implemented a rookery management program—a set of non-lethal “bird deterrent” techniques (e.g., pyrotechnics, noise-makers, lasers, distress calls, effigies, balloons, drones) to discourage migratory birds from nesting in the Project Area. These measures:

  • Do not kill birds or prevent reproduction,
  • Are intended to redirect nesting to less urbanized, lower-contact areas, and
  • Are designed to comply with the Migratory Bird Treaty Act (MBTA), which forbids disturbing active nests.

The plaintiffs assert that this tree-removal and rookery-management regime will irreparably destroy the Sacred Area’s spiritual ecology and, thereby, their ability to conduct essential religious ceremonies.

C. Regulatory and Historic-Preservation Context

The Project Area is heavily regulated because:

  • It lies within the 100-year floodplain, triggering San Antonio’s Unified Development Code (UDC) tree-preservation standards.
  • The retaining walls are historic: they contribute to Brackenridge Park’s designation as:
    • a City Historic Landmark,
    • a State Antiquities Landmark, and
    • a site on the National Register of Historic Places.
  • As a result, work must comply with:
    • Texas Historical Commission oversight,
    • U.S. Army Corps of Engineers (USACE) permitting under federal law (including National Historic Preservation Act § 106),
    • Secretary of the Interior’s Standards for historic preservation,
    • ADA accessibility requirements,
    • OSHA workplace safety rules, and
    • the MBTA’s protections for migratory birds and their nests.

Locally, the City:

  • Obtained a variance from UDC tree-preservation requirements for projects in the floodplain.
  • Went through repeated public hearings before:
    • the Planning Commission,
    • the Historic and Design Review Commission (HDRC), and
    • the Office of Historic Preservation (which ultimately issued a certificate of appropriateness).

The record shows an extensive, iterative process, including multiple public meetings where plaintiffs and other citizens objected to tree removal and rookery management and proposed alternative plans.

D. District Court Proceedings

From early 2023 to November 2023, the City fenced off the Project Area, temporarily preventing access to the Sacred Area. Plaintiffs filed suit in August 2023, seeking declaratory and injunctive relief to:

  1. Restore access to the Sacred Area for religious worship (both group ceremonies and individual worship),
  2. “Preserve the spiritual ecology” by minimizing tree removal, and
  3. Prevent rookery management measures so that cormorants can nest in the Sacred Area.

After a four-day preliminary injunction hearing, the district court:

  • Found sincere religious beliefs and accepted stipulated facts.
  • Granted partial injunctive relief:
    • Ordered the City to allow access for religious ceremonies on specified astronomical dates, for groups of 15–20, for approximately one hour.
    • Ordered removal of a large, dangerous broken tree limb that posed a serious safety risk.
  • Denied other relief:
    • Declined to enjoin the City’s tree-removal plan.
    • Declined to enjoin rookery-management (bird-deterrence) measures, finding they served compelling public health and safety interests.
    • Denied unscheduled, individual access to the area, citing safety and practicality concerns and noting waiver of that request.

E. Appeal, Emergency Motions, and Certified Question

Plaintiffs appealed and sought an injunction pending appeal. A Fifth Circuit panel:

  • Granted expedited appeal and initially issued an administrative stay of tree-removal and rookery-management activities.
  • Later partially lifted the stay at the City’s request to allow rookery management during migration seasons.
  • Ultimately withdrew its first published opinion (150 F.4th 430), treated the petition for rehearing en banc as a petition for panel rehearing, and certified a novel state-law question to the Supreme Court of Texas concerning the scope of the Texas Religious Services Clause, Tex. Const. art. I, § 6-a.

The Texas Supreme Court accepted the certified question and held:

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.

Perez v. City of San Antonio, No. 24-0714, 2025 WL 1675639, at *13 (Tex. June 13, 2025).

Armed with this answer, the Fifth Circuit issues the present substituted opinion, again affirming the district court’s denial of most injunctive relief and denying plaintiffs’ renewed emergency motion for an injunction pending appeal.

III. Summary of the Fifth Circuit’s Opinion

  1. Mootness of access claims: Because the City removed the fencing and dangerous limb and allowed public and ceremonial access to the Sacred Area, plaintiffs’ challenge to the prior closure is moot. The voluntary-cessation exception does not apply because the City demonstrated that the challenged conduct is not reasonably expected to recur.
  2. TRFRA claim:
    • The court begins with TRFRA to avoid unnecessary constitutional rulings.
    • It holds that plaintiffs have not shown a likely “substantial burden” on religious exercise under TRFRA’s standard (“real” and “significant” as opposed to “trivial” or merely “perceived”).
    • Even assuming a substantial burden, the court finds the City has:
      • Compelling interests in public safety (retaining-wall integrity, dangerous trees) and public health (mitigating disease and environmental harms from dense bird rookeries).
      • Chosen the least restrictive means by:
        • Selecting an engineering design (cantilevered walls) after considering alternatives (e.g., a pier-and-spandrel system); and
        • Implementing narrowly targeted, non-lethal rookery management that only deters nesting in a two-acre area while allowing birds to forage and roost elsewhere.
    • Therefore, plaintiffs have not shown a likelihood of success on the merits of their TRFRA claim.
  3. First Amendment Free Exercise claim:
    • The court assumes, without deciding, that strict scrutiny applies (i.e., it does not resolve neutrality/general applicability under Employment Division v. Smith or Fulton).
    • Applying essentially the same reasoning as under TRFRA—compelling interests and least restrictive means—the court holds plaintiffs are unlikely to succeed under the Free Exercise Clause.
  4. Texas Constitution freedom-of-worship claim (Art. I, § 6):
    • Because plaintiffs incorporate their TRFRA and Free Exercise arguments by reference, and those arguments fail, the court similarly finds no likelihood of success under § 6.
  5. Texas Religious Services Clause claim (Art. I, § 6-a):
    • Under the Texas Supreme Court’s certified-answer holding, the Religious Services Clause:
      • Is “absolute and categorical” when it applies; but
      • Does not apply to governmental actions relating to the preservation and management of public lands.
    • Because plaintiffs challenge the City’s preservation and management of its parkland, they cannot invoke § 6-a, and their claim fails as a matter of law.
  6. Preliminary injunction and injunction pending appeal:
    • The standard: plaintiffs must show (1) likelihood of success; (2) irreparable injury; (3) balance of harms in their favor; and (4) consistency with the public interest.
    • The court emphasizes that failure to show likelihood of success alone is sufficient to deny relief.
    • Because plaintiffs cannot show a likelihood of success on any of their four theories, both the preliminary injunction appeal (beyond the access portion) and the motion for injunction pending appeal fail.
  7. Disposition:
    • District court’s judgment is affirmed.
    • Appeal as to access to the Project Area is dismissed as moot.
    • Plaintiffs’ Emergency Motion for Injunction Pending Appeal is denied.

Judge Higginson concurs in part and dissents in part, reiterating that, in his view, the burden on the Native American Church members is “substantial,” not “trivial,” and that the majority’s contrary conclusion is “ipse dixit, not analysis rooted in law.”

IV. Detailed Analysis

A. Precedents and Doctrinal Framework

1. Texas Religious Freedom Restoration Act (TRFRA) and State Precedents

TRFRA, Tex. Civ. Prac. & Rem. Code § 110.003, is Texas’s counterpart to the federal Religious Freedom Restoration Act (RFRA). It was enacted after Employment Division v. Smith, 494 U.S. 872 (1990), to restore strict scrutiny for state and local laws that substantially burden religious exercise.

Under TRFRA:

  • The claimant must show that government action:
    • “Substantially burdens” the free exercise of religion,
    • As measured from the believer’s perspective; and
    • That the beliefs are sincere (which the City concedes here).
  • If a substantial burden is shown, the government must prove that:
    • The action furthers a compelling governmental interest, and
    • Is the least restrictive means of furthering that interest.

The Fifth Circuit relies heavily on two Texas Supreme Court cases and its own precedent:

  • Barr v. City of Sinton, 295 S.W.3d 287 (Tex. 2009)
    • Involved a city ordinance that effectively barred a pastor from operating a halfway house ministry for sex offenders on his church property.
    • Key contributions:
      • Defines “substantial burden” as “real vs. merely perceived, and significant vs. trivial,” leaving a “broad range” of covered burdens.
      • Emphasizes a fact-specific, individual-context approach.
      • Warns that bare legislative recitations of “public safety” or “general welfare” are insufficient to show a compelling interest under TRFRA; courts must look at the specific interest in applying the law to the particular claimant.
  • Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009)
    • Santeria priest challenged a city’s prohibition on animal slaughter.
    • Fifth Circuit applied TRFRA and held the ordinance invalid because:
      • The city’s interest in public health and animal welfare was not compelling as applied to the plaintiff’s small-scale religious ritual; and
      • The city did not even attempt to rebut multiple less-restrictive alternatives proposed by the plaintiff.
    • Important here because the Perez panel:
      • Uses Merced as the model for how strict scrutiny should function,
      • And explicitly contrasts this case with Merced, emphasizing that, unlike that city, San Antonio did seriously consider alternative methods and justified its choices.
  • A.A. ex rel. Betenbaugh v. Needville Independent School District, 611 F.3d 248 (5th Cir. 2010)
    • Native American student’s parents challenged a school dress code that effectively required cutting their child’s hair in violation of religious beliefs.
    • The Fifth Circuit:
      • Held that even a restriction short of total prohibition may be a substantial burden if it “severely restricts alternatives for religious exercise.”
      • Emphasized again the “significant and real” impact on religious expression from the believer’s perspective.
    • In this rehearing, the majority explicitly repositions its analysis to avoid what Judge Higginson saw as misapplication of Needville in the earlier (withdrawn) opinion—hence his comment about the “simple subtraction” of that citation.

2. Federal RFRA/RLUIPA and Free Exercise Precedents

The Perez court treats federal RFRA and RLUIPA case law as interpretive guides for TRFRA because all use a similar strict-scrutiny framework.

Key federal precedents discussed or applied include:

  • Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)
    • U.S. Forest Service planned to build a road and harvest timber in an area sacred to Native American tribes.
    • Supreme Court held no Free Exercise violation: government action on its own land that incidentally affects religious practices, without coercion or penalties, does not necessarily trigger strict scrutiny.
    • Cited here primarily via Navajo Nation to distinguish federal “coercion” tests from TRFRA’s broader “real and significant burden” standard.
  • Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc)
    • Tribes challenged the use of treated wastewater for snowmaking on a sacred mountain.
    • The Ninth Circuit held there was no “substantial burden” under RFRA absent coercion or denial of a benefit conditioned on violating religious beliefs.
    • The City relies on this line of reasoning; the Perez majority clarifies that Texas has not adopted that narrow “coercion” definition under TRFRA.
  • Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)
    • Key Free Exercise case setting out that laws targeting religion or lacking general applicability are subject to strict scrutiny.
    • Provides the basic definition: the government must show a compelling interest and narrow tailoring.
  • Fulton v. City of Philadelphia, 593 U.S. 522 (2021)
    • City refused to contract with a Catholic foster-care agency that declined to certify same-sex couples as foster parents.
    • Court applied strict scrutiny because the city’s system allowed discretionary exemptions, making the policy not generally applicable.
    • Fulton’s famous line: “so long as the government can achieve its interests in a manner that does not burden religion, it must do so.”
    • In Perez, plaintiffs quote that line as a near-absolute accommodation command; the Fifth Circuit responds that Fulton is merely a restatement of the strict scrutiny test, not an obligation to enact any particular alternative.
  • McCullen v. Coakley, 573 U.S. 464 (2014)
    • Struck down a 35-foot buffer zone around abortion clinics as a violation of free speech.
    • Clarified what “narrow tailoring” requires: the government must show it “seriously undertook” to address its interests with “less intrusive tools,” and considered alternatives used successfully elsewhere.
    • Perez heavily relies on this standard to evaluate the City’s least-restrictive-means showing.
  • Tandon v. Newsom, 593 U.S. 61 (2021) (per curiam)
    • Pandemic-era Free Exercise case reiterating strict scrutiny where secular and religious gatherings are treated differently.
    • Cited in Perez for the proposition that narrow tailoring requires demonstration that less-restrictive measures cannot address the government’s interest.
  • Burdwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), and Holt v. Hobbs, 574 U.S. 352 (2015)
    • Emphasize that under RFRA/RLUIPA, the compelling-interest analysis must focus on the application of the law to the particular claimant, not just the law in the abstract.
    • Perez adopts this approach, asking whether the City has a compelling interest in enforcing its project against these specific plaintiffs.

3. Mootness and Voluntary Cessation

For the access claim, the court traverses standard mootness doctrine:

  • Church of Scientology v. United States, 506 U.S. 9 (1992):
    • A case is moot if it is “impossible for the court to grant any effectual relief whatever.”
  • Voluntary cessation doctrine:
    • Already, LLC v. Nike, Inc., 568 U.S. 85 (2013): a defendant cannot automatically moot a case simply by stopping challenged conduct once sued.
    • United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199 (1968), and Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167 (2000): voluntary cessation moots a case only if it is “absolutely clear” the behavior cannot reasonably be expected to recur; the defendant bears a “heavy burden.”
  • Preiser v. Newkirk, 422 U.S. 395 (1975):
    • Used here for the notion that where there is no reasonable expectation of recurrence and no evident governmental animosity, a dispute can become moot.

The City met its burden by:

  • Removing the dangerous limb,
  • Reconfiguring fencing to restore public access,
  • Allowing nighttime access for a religious ceremony when the park was otherwise closed, and
  • Dismissing its own cross-appeal on access.

Given these “subsequent developments,” the court finds no reasonable expectation the City will re-fence the area in the same way, and denies application of the voluntary-cessation exception.

4. Preliminary Injunction and Injunction Pending Appeal Standards

The court reiterates familiar standards:

  • Preliminary injunction: From Atchafalaya Basinkeeper v. U.S. Army Corps of Engineers, 894 F.3d 692 (5th Cir. 2018), and Texas Alliance for Retired Americans v. Scott, 28 F.4th 669 (5th Cir. 2022), the movant must show:
    1. Likelihood of success on the merits,
    2. A substantial threat of irreparable injury absent an injunction,
    3. The threatened injury outweighs harm to the non-movant, and
    4. Granting the injunction will not disserve the public interest.
  • Standard of review: abuse of discretion, with:
    • Factual findings reviewed for clear error; and
    • Legal conclusions reviewed de novo.
  • Injunction pending appeal: From Janvey v. Alguire, 647 F.3d 585 (5th Cir. 2011), and earlier Fifth Circuit authority, the same four factors apply, but the movant bears the burden on each.

The panel underscores a critical doctrinal point: failure to demonstrate likelihood of success on the merits alone suffices to deny injunctive relief. See CAE Integrated, L.L.C. v. Moov Technologies, Inc., 44 F.4th 257, 264 n.22 (5th Cir. 2022).

B. The Court’s Legal Reasoning

1. Substantial Burden Under TRFRA

The most delicate and contested portion of the opinion concerns whether the City’s actions “substantially burden” plaintiffs’ religious exercise.

Key points in the majority’s reasoning:

  • TRFRA’s test is broader than federal “coercion” standards:
    • The City argued by reference to Lyng and Navajo Nation that government use of its own land does not substantially burden religion absent coercion or conditioning of benefits.
    • The Fifth Circuit rejects using that as the legal standard under TRFRA, emphasizing instead Texas’s “real and significant” test from Barr.
  • “Real vs. merely perceived, significant vs. trivial”:
    • The court reiterates that substantial burden is:
      • Measured from the believer’s perspective,
      • But must still be “real” and “significant,” not speculative or trivial.
    • It notes that the inquiry is “case-by-case” and “fact-specific.”
  • Plaintiffs’ showing is deemed inadequate:
    • The court notes that, on appeal, plaintiffs largely assumed the City did not dispute substantial burden, and offered very little targeted argument on this element.
    • The City, however, “absolutely” contested it, and the record showed:
      • Plaintiffs otherwise have “virtually unlimited access” to the 343-acre park for religious and cultural activities.
      • Rookery management affects only about two acres.
      • Double-crested cormorants do not inhabit the area year-round due to migration patterns; they are absent for extended periods regardless of deterrence.
      • Deterrence efforts do not exclude cormorants (or other birds) from foraging, roosting, or entering the park, but aim only to prevent nesting in this specific, highly urbanized segment.
    • Given the preliminary posture and limited briefing, the court holds that plaintiffs have not met their burden to show they are likely to prove a real and significant curtailment of religious conduct.

The dissent’s core criticism—referenced but not reprinted here—is that this conclusion underestimates the seriousness of destroying or altering a unique sacred site whose power is believed to depend on its specific natural configuration. But the majority’s bottom line is: even assuming arguendo a substantial burden, the City passes strict scrutiny.

2. Compelling Governmental Interests

The City offers, and the court accepts, multiple interrelated compelling interests:

  • Structural safety and public safety:
    • Retaining walls are failing and, if left unrepaired, pose dangers to park visitors.
    • Large dead or dying trees risk falling and injuring or killing people.
    • Failure to repair or maintain infrastructure in a major public park raises obvious and serious safety concerns.
  • Public health and environmental quality:
    • Dense bird rookeries near playgrounds, picnic areas, walkways, and other public amenities generate massive accumulations of bird guano.
    • Expert testimony and wildlife-management documents detail:
      • Risks of zoonotic diseases (e.g., histoplasmosis, psittacosis, salmonellosis),
      • Respiratory issues linked to uric acid in droppings,
      • Substantial contamination of the San Antonio River with E. coli, attributed heavily to avian and non-avian wildlife.
    • Park areas become “nearly unusable” for much of the year due to bird density and fecal contamination, as demonstrated by photographs.
  • Compliance with overlapping legal regimes:
    • MBTA prohibits disturbing active nests of migratory birds. To proceed with construction that requires tree removal, the City must ensure trees are not actively nesting sites.
    • Historic-preservation rules (Texas Historical Commission, USACE, Secretary of the Interior guidelines) constrain acceptable engineering solutions to preserve historic walls.

Importantly, the court applies the Hobby Lobby/Holt approach, focusing not on generalized interests in safety but on:

“the compelling-[interest] test … through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.”

Thus, the question is whether the City has compelling reasons to insist on:

  • Repairing and stabilizing retaining walls even though the plaintiffs object to any tree removal; and
  • Managing rookeries in this location despite plaintiffs’ desire to preserve cormorant nesting there.

The Fifth Circuit concludes that the record—expert testimony, photographs, environmental data, and detailed planning documents—goes well beyond the kind of thin, conclusory “public safety” recitations Barr criticized. The district court’s findings adequately reflect “real and serious” public-safety and public-health concerns, not mere pretext.

3. Least Restrictive Means (Narrow Tailoring)

Under TRFRA and strict scrutiny generally, the City must show that no less restrictive approach would adequately achieve its compelling interests.

a. Engineering Alternatives and Tree Removal

Plaintiffs suggested:

  • Repairing walls “in place” or
  • Using a pier-and-spandrel system that, they argue, would reduce excavation and tree removal.

The City, however, assembled a multi-disciplinary design team (engineers, arborists, landscape architects, preservation officials) which:

  • Evaluated the pier-and-spandrel method against the chosen cantilevered wall system.
  • Met with a Tree Assessment Committee and an engineer volunteer (Moises Cruz, who advocated for pier-and-spandrel) to review specific trees and possible engineering impacts.
  • Concluded that:
    • Pier-and-spandrel would require drilling through the face of historic walls, conflicting with Secretary of the Interior standards.
    • It would not materially reduce tree loss; independent arborists opined that no additional trees would be preserved.
    • It would cost two to three times more than the cantilever system, exceeding the bond project’s budget.
    • Other ideas, like moving walls into the river to avoid tree roots, would trigger expensive and complicated floodplain mitigation projects.

On this record, the Fifth Circuit holds that:

  • The City “seriously undertook” to examine less intrusive alternatives, satisfying McCullen’s narrow-tailoring standard.
  • The selected plan preserves as many trees as is feasible while satisfying safety, historic-preservation, and budgetary constraints.
  • Further accommodation for plaintiffs’ religious practice by saving additional trees is not practically or legally achievable.
b. Rookery Management and Alternatives

Plaintiffs propose five principal alternatives to the City’s rookery-management strategy, including:

  • Targeting roo kery management only at egrets and herons, not cormorants.
  • Completing construction within a four- to eight-month window when migratory birds, especially cormorants, are not present.
  • Starting construction in the off-season, pausing during nesting, then resuming.

The City counters, with credible wildlife-biologist testimony:

  • No species-specific deterrence tool exists that could affect egrets and herons but leave cormorants undisturbed:
    • The deterrent tools (noise, visual scare devices, habitat modification) are site-based, not species-specific.
    • Because the species involved (egrets, herons, cormorants) are all colonial nesting birds, attempts to selectively deter some but not others are biologically unrealistic.
  • Timing alone cannot solve the problem:
    • Migration patterns for these species overlap; cormorants typically arrive between April and May, but timings vary.
    • Even if deterrence is paused and a single nest is established, MBTA immediately forbids disturbing that nest, effectively halting work.
    • Thus, a strategy based on intermittent construction windows would not reliably both:
      • Comply with MBTA, and
      • Mitigate health risks from bird guano in this high-use area.
  • Scope and intensity are already minimized:
    • Deterrence efforts are limited to a two-acre Project Area.
    • Birds remain free to visit, feed, and roost in the park generally, and even in the Project Area when not nesting.
    • The stated goal is to shift nesting to less urbanized zones, not to eliminate birds from the park.

On this record, the Fifth Circuit concludes:

  • The City has selected “less intrusive tools readily available” and tailored deterrence only to the degree necessary to avoid dense nesting in a sensitive, high-contact zone.
  • Alternatives proposed by plaintiffs, although theorized, are either:
    • Biologically impractical,
    • Legally incompatible with MBTA, or
    • Less effective at mitigating the serious health risks documented in the record.
  • The rookery-management plan is therefore the least restrictive means of furthering the City’s compelling health and safety interests.
c. Role of “Failure to Study” and Plaintiffs’ Characterization

A key rhetorical point for plaintiffs is their allegation that the City “never commissioned a study” designed to:

  • Prioritize preservation of cormorant presence and habitat, or
  • Maximize accommodation of plaintiffs’ religious exercise.

They attempt to leverage a pleading admission—that the City did not commission a study “as characterized” in their complaint—into a concession that the City refused to consider religious accommodation.

The Fifth Circuit rejects this reading. The City’s answer:

  • Denied that such specific, religion-prioritizing studies were required.
  • Explicitly stated that it nonetheless “did study viable alternatives” to achieve its goals with the least adverse impact.
  • Detailed numerous public meetings, stakeholder consultations, and iterative revisions to the tree-removal plan (including reducing scheduled removals from 70 to 48, with 21 relocations).

The court characterizes plaintiffs’ argument as conflating:

  • A refusal to commission a religion-first engineering study, with
  • A refusal to consider religious concerns at all.

Given:

  • Extensive record evidence of consultations, redesigns, and accommodations (including ceremonial access and reduced tree removal), and
  • The heightened deference due to the district court’s factual findings at the preliminary injunction stage,

the Fifth Circuit holds there is no clear error in concluding that the City did consider viable alternatives and adopted the least restrictive means.

4. Free Exercise and Texas Constitutional Claims

Having exhaustively analyzed TRFRA, the court effectively “ports” its reasoning to the First Amendment and Texas Constitution (art. I, § 6).

  • The court assumes strict scrutiny applies under the First Amendment (without deciding neutrality/general applicability).
  • It then applies the same:
    • Compelling-interest analysis, and
    • Least-restrictive-means analysis.
  • For art. I, § 6 (freedom to worship), plaintiffs offer no distinct arguments; they simply incorporate their TRFRA and Free Exercise contentions, which the court found unpersuasive.

Thus, under both federal and state constitutional provisions, plaintiffs fail to show a likelihood of success.

5. Texas Religious Services Clause (Art. I, § 6-a)

Perhaps the most significant doctrinal development in this case is not strictly in the Fifth Circuit’s opinion, but in the Texas Supreme Court’s certified-answer decision, which the Fifth Circuit faithfully applies.

Article I, § 6-a, added to the Texas Constitution in 2021, provides that the 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 . . . by a religious organization established to support and serve the propagation of a sincerely held religious belief.

The Texas Supreme Court interprets this as:

  • “Absolute and categorical” when it applies: once a governmental act falls under § 6-a, there is effectively no balancing test; the prohibition is unconditional, regardless of compelling interests or narrow tailoring.
  • However, its scope is limited:
    • It does not extend to governmental actions concerning the “preservation and management of public lands.”
    • Thus, land-management decisions that have incidental effects on religious services are outside the clause’s reach.

Applying that answer, the Fifth Circuit’s conclusion is straightforward:

  • Plaintiffs challenge the City’s project as a set of land-management decisions: tree removal, wall repair, rookery management on public parkland.
  • Whatever their religious consequences, such actions fall outside § 6-a.
  • Therefore, plaintiffs cannot demonstrate any likelihood of success under the Religious Services Clause.

C. Impact and Significance

1. For Texas’s Religious Services Clause

The Texas Supreme Court’s certified-answer ruling—adopted and applied here—clarifies a critical uncertainty about art. I, § 6-a:

  • Absolute but narrow:
    • When the state directly “prohibits or limits” religious services (for example, congregation-size caps or closures targeted at religious gatherings), § 6-a provides a categorical shield.
    • No strict-scrutiny balancing is required; the government simply may not impose such limitations.
  • Non-applicability to public land management:
    • Governmental actions that affect religious practice incidentally through land-use planning, environmental regulation, or park management are not governed by § 6-a.
    • Such actions are instead evaluated under:
      • TRFRA,
      • the Free Exercise Clause, and
      • the Texas freedom-of-worship provision.

Practically, this means:

  • § 6-a does not transform every regulatory decision that makes worship more difficult into a per se constitutional violation.
  • Challenges to zoning, environmental regulation, historic-preservation decisions, or park-management plans must proceed through TRFRA and traditional Free Exercise analysis, with their built-in balancing tests.

2. For TRFRA and Sacred-Site Litigation

The case is particularly important for disputes involving Indigenous or other faiths whose worship is deeply tied to natural features on public land.

Key implications:

  • Substantial-burden threshold:
    • Although Texas rejects the narrow “coercion” test from Navajo Nation, the Perez majority still sets a relatively demanding “real and significant” threshold.
    • Where the government:
      • Does not restrict access (or access has been restored), and
      • Alters only some aspects of the environment (even if the believer regards those features as spiritually critical),
    • Courts may be reluctant at the preliminary-injunction stage to label such burdens “substantial,” especially if the record and briefing on that element are thin.
  • Compelling interests in safety and health deeply documented:
    • Perez illustrates how a municipality can successfully demonstrate compelling interests:
      • Detailed expert testimony (wildlife veterinarians, biologists, engineers, arborists);
      • Environmental testing and photographs documenting harm; and
      • Integration of multiple legal constraints (MBTA, historic-preservation law, ADA, OSHA).
    • Comparison with Merced shows that generalized, unsubstantiated claims of safety or nuisance are insufficient; the showing here is far more concrete and granular.
  • Least restrictive means and process:
    • The court places significant weight on:
      • Multi-disciplinary design processes,
      • Consideration and rejection of specific alternatives with reasons, and
      • Documented adjustments in response to public input (e.g., reduction of tree removals from 70 to 48).
    • Future defendants in TRFRA/Free Exercise cases will likely cite Perez as a model for how to build a record demonstrating that they “seriously undertook” to find less-restrictive options.

3. For Preliminary Injunction Practice

Perez underscores:

  • The centrality of the likelihood-of-success factor; courts may decide injunction motions based solely on that factor, bypassing irreparable harm and balancing if the merits are weak.
  • The importance of targeted briefing on each element of the TRFRA and Free Exercise tests, including substantial burden. Plaintiffs’ assumption that substantial burden was undisputed hurt them at the appellate level.
  • The role of clear-error deference on factual disputes when reviewing preliminary injunctions—especially in technical, expert-heavy records.

4. The Dissent and Doctrinal Tensions

Judge Higginson’s brief concurrence/dissent signals unresolved tensions:

  • He believes the destruction or alteration of the Sacred Area’s spiritual ecology is plainly a “substantial burden” under Barr and Needville, not a trivial or subjective harm.
  • He criticizes the majority for, in his view, recasting a serious religious injury as insubstantial without fully engaging the core of plaintiffs’ beliefs.
  • He points out that removing citations does not change underlying facts: the effect on this small, unique sacred site remains profound.

This highlights an ongoing doctrinal challenge: how to measure “substantial burden” when:

  • Beliefs tie sacredness to specific natural configurations on land the government owns and manages.
  • The government’s actions do not force believers to violate doctrines, but they permanently transform the worship setting.

Perez’s majority answers this in a government-friendly way; the dissent believes the court has undervalued the sacred-site impact.

V. Complex Concepts Simplified

1. What is a “Substantial Burden” on Religion?

Different legal regimes use slightly different tests, but under TRFRA (as interpreted by Barr and applied here):

  • A burden is “substantial” if it:
    • Is real, not speculative or imagined; and
    • Is significant, not a minor inconvenience.
  • It focuses on how much a person’s religious conduct is curtailed and the real impact on religious expression, from the believer’s perspective.

It is not enough simply to feel offended or saddened by government action; the law requires a demonstrable, serious impairment of religious practice.

2. What is “Strict Scrutiny”?

Strict scrutiny is the most demanding form of judicial review. When it applies (for example, under TRFRA or when a law targets religion), the government must show:

  1. Compelling interest: an extremely important public goal—such as saving lives, protecting public health, or preserving critical infrastructure.
  2. Least restrictive means: the government’s method must:
    • Be narrowly tailored—no broader than necessary; and
    • Not burden religious practice more than is necessary to achieve the compelling goal.

If the government could reasonably achieve its goal in a way that burdens religion less, it must use that alternative.

3. Rookery Management and the Migratory Bird Treaty Act

A “rookery” is an area where large numbers of birds nest in close proximity. In urban parks, rookeries can:

  • Create massive accumulations of bird droppings;
  • Increase risk of disease transmission; and
  • Damage park facilities and contaminate water bodies.

The MBTA is a federal law that:

  • Protects many migratory bird species;
  • Makes it generally illegal to disturb nests, eggs, or birds without federal authorization.

Because of this, cities often:

  • Use deterrence measures before nests are established;
  • Avoid any action that would disturb active nests.

In this case, San Antonio’s rookery management aims to:

  • Prevent birds from nesting in the most heavily used public areas,
  • Without killing birds or preventing them from using the park altogether.

4. Cantilevered Walls vs. Pier-and-Spandrel Construction

These are two different engineering methods for stabilizing retaining walls:

  • Cantilevered walls:
    • New structural elements are built behind existing walls.
    • They lean on buried foundations to support and stabilize the wall.
    • May require more excavation behind the wall, impacting nearby tree roots.
  • Pier-and-spandrel system:
    • Piers (deep vertical supports) are drilled into the ground behind the wall.
    • Spandrels (connecting elements) tie the wall to the piers.
    • Often involves drilling through the wall face—problematic for historic walls.

Plaintiffs favored the pier-and-spandrel system as a potentially less tree-destructive alternative; the City’s experts concluded it would not actually save more trees, would damage historic walls, and would cost much more.

5. Mootness and Voluntary Cessation

A case is “moot” when the court can no longer provide meaningful relief—for example, because the challenged conduct has stopped and is not likely to recur.

“Voluntary cessation” is an exception: a defendant cannot evade judicial review by stopping the challenged behavior only after being sued, if it might resume the behavior later. The defendant must show it is “absolutely clear” the wrongful conduct will not recur.

Here, the City’s:

  • Permanent removal of the dangerous limb,
  • Reconfiguration of fencing to restore access,
  • Special accommodation for ceremonies, and
  • Abandonment of its cross-appeal on access

convinced the court that the access issue is not likely to arise again in the same form. The access claim was thus dismissed as moot.

VI. Conclusion: Key Takeaways and Broader Significance

Perez v. City of San Antonio sits at the intersection of religious liberty, Indigenous sacred-site claims, and complex public-land management. Its principal contributions are:

  • Clarification of Texas’s Religious Services Clause:
    • Through the Texas Supreme Court’s answer, the case cements the understanding that art. I, § 6-a is:
      • Absolute in operation (no balancing) but
      • Narrow in scope (does not apply to public-land management and preservation decisions).
  • Application of TRFRA to public-land and sacred-site disputes:
    • The Fifth Circuit affirms that TRFRA uses a “real and significant” test for substantial burden, not the narrower federal “coercion” test.
    • Yet it holds that plaintiffs have not made a sufficient showing—particularly at the preliminary injunction stage—to demonstrate such a burden.
    • Even assuming a substantial burden, the City’s extensive evidentiary record on:
      • Public safety (failing walls, hazardous trees),
      • Public health (rookery-related diseases, water contamination), and
      • Regulatory compliance (MBTA, historic-preservation laws)
    • supports a conclusion that the tree-removal and rookery-management plans are the least restrictive means of achieving compelling interests.
  • Guidance for municipalities and litigants:
    • Municipal defendants: Perez illustrates how to build a robust record of:
      • Multi-disciplinary planning,
      • Consideration and rejection of specific alternatives,
      • Public engagement and accommodations, and
      • Compliance with overlapping legal regimes.
    • Religious claimants: Perez underscores the need for:
      • Clear, detailed briefing on the “substantial burden” element,
      • Concrete proof of curtailed religious conduct—not just spiritual disappointment or offense,
      • Specific, practicable alternative measures that can realistically satisfy the government’s interests.
  • Unresolved tension over sacred natural sites:
    • The majority and dissent diverge sharply on how to evaluate the burden created by altering or degrading a unique sacred site on public land.
    • That tension reflects deeper, ongoing challenges in religious freedom jurisprudence regarding:
      • Indigenous religious practices tied to particular landscapes, and
      • Government’s broad discretion in managing public resources.

Doctrinally, Perez reinforces that strict scrutiny under TRFRA and the Free Exercise Clause is demanding, but not insurmountable for the government when it can marshal robust evidence and demonstrate rigorous consideration of alternatives. For future cases in Texas involving religious objections to public-land uses, Perez will be a central precedent—clarifying both the limits of the Religious Services Clause and the contours of strict scrutiny in the sacred-site context.

Case Details

Year: 2025
Court: Court of Appeals for the Fifth Circuit

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