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The city of San Antonio is challenging the claims made by members of the Lipan Apache Native American Church, who are relying on a Texas constitutional amendment to block limitations on their religious services. In a statement to the Texas Supreme Court on Wednesday, Jane Webre of Scott Douglass & McConnico LLP, representing the city, argued that the 2021 amendment prohibiting limits on religious services must be viewed in the context of COVID-19 restrictions.

Church members had filed a lawsuit alleging that San Antonio's park restoration plan for Brackenridge Park threatened their religious practices. They contended that the amendment required the city to explore other options before restricting access to the sacred site. However, San Antonio disagreed, asserting that the amendment does not provide an absolute prohibition on limiting religious services, and that the city’s actions, such as tree removal and bird population management, fall under its authority to regulate public health and safety.

Webre cautioned the court about the potential consequences of an unrestricted interpretation of the amendment, pointing to questions raised by state legislators regarding the handling of practices at the Yearning for Zion Ranch, a polygamist church raided by the state in 2008. She argued that strict scrutiny was applied in those cases to ensure that public safety concerns were addressed while respecting religious freedoms.

The 2021 constitutional amendment, which is part of Article I, Section 6 of the Texas Constitution, was introduced in response to the COVID-19 pandemic when religious services were disrupted due to government-imposed restrictions. Webre emphasized that the amendment’s primary intent was to prevent discrimination against religious services, particularly during the pandemic when churches were closed and attendance was capped. In this context, she argued that the amendment was not intended to prevent the city from managing its public spaces for health and safety purposes.

Webre noted that the city of San Antonio had made accommodations for church members, allowing access to the park and granting permits for services like the midnight water service during the solstice, without charging fees. Furthermore, she argued that bird population management did not pose a significant barrier to the church's religious practices, as there was no guarantee that birds would be present during services, regardless of the city's actions.

William F. Cole, representing the Texas Attorney General’s Office, also weighed in, asserting that the intent behind the amendment was to prevent restrictions on religious gatherings, such as curfews or limitations on service times, which had been imposed during the pandemic. He expressed concerns that extending the amendment to every potential impact on religious services would exceed its original scope.

While the justices seemed skeptical of Webre’s argument regarding the amendment's scope, they also raised questions about the plaintiffs' broader interpretation. John Greil, representing the church members, acknowledged that there were limitations on the provision, including the lack of a duty for the government to facilitate religious services and the exclusion of inherently harmful activities from protection. He suggested that the case should not be decided based on hypothetical scenarios but should focus on the specific situation at hand.

Greil argued that the amendment reflected the will of the people of Texas to prevent the government from imposing arbitrary restrictions on religious activities, as it had during the pandemic. He emphasized that the state's role was not to decide what constitutes risk in religious practices but to ensure that people of faith can carry out their services without undue interference.

The plaintiffs, Gary Perez and Matilde Torres, are represented by a team from Jones Day and the University of Texas School of Law’s Law and Religion Clinic. San Antonio is represented by Scott Douglass & McConnico LLP, Langley & Banack Inc., and the city attorney’s office. The Texas Attorney General’s Office is also involved in the case.

The case is currently before the Texas Supreme Court under the case number 24-0714, with a related case pending in the Fifth Circuit Court of Appeals under case number 23-50746.