Can a city use its zoning authority to curtail a religious activity without explaining why the regulation was necessary?

That’s the central issue in Pastor Rick Barr, et al. v. City of Sinton, a case of first impression argued before the Texas Supreme Court on March 22. That the case has the justices’ attention was evident as all nine members of the court peppered the attorneys arguing Barr with questions.

Barr and Philemon Homes Inc., which petitioned the Supreme Court to review the case, contend that a Sinton city ordinance that essentially bars them from operating residential rehabilitation facilities for nonviolent offenders inside the city limits violates a law the Texas Legislature passed in 1999 to curtail government interference with religious practices. Grace Christian Fellowship Church sponsors Barr’s ministry for men released from prison.

“The important issue in this case is whether the Texas Religious Freedom Restoration Act [Texas RFRA] applies to land use or not,” says Doug Laycock, a constitutional law professor at the University of Michigan Law School and professor emeritus at the University of Texas School of Law.

The Texas RFRA, Chapter 110 of the Civil Practice & Remedies Code, prohibits the government from substantially burdening a person’s free exercise of religion unless the government can show the burden is the least restrictive means of furthering a compelling governmental interest.

Laycock, a religious liberty scholar who supported passage of the Texas RFRA in 1999, says the state statute parallels the federal RFRA the U.S. Congress passed in 1993. Thirteen states have RFRA statutes that protect religious practices, says Laycock, who is not involved in Barr.

The state Supreme Court will interpret the Texas RFRA for the first time in Barr. While the court’s decision won’t impact directly how courts might rule on similar laws in other states, the decision in Barr could be persuasive, Laycock says.

James C. Ho, an appellate attorney for Barr and Philemon Homes, told the justices in his opening statement that the Legislature, in passing the Texas RFRA, answered the fundamental question of what courts should do when government regulation conflicts with religious practices.

“Courts should favor religious practices unless a city can override that presumption,” Ho said.

But Carlos Villareal, an attorney for the city who is a partner in Corpus Christi’s Hermansen, McKibben, Woolsey & Villareal, argued that the Legislature did not intend for the Texas RFRA to inhibit local governments’ ability to regulate zoning and land use when local citizens have concerns about certain religious activities.

Barr and Philemon Homes provide the following factual history of the case in their brief to the Supreme Court: Barr operated faith-based rehabilitation facilities for nonviolent probationers and parolees in two homes located across the street from Grace Christian Fellowship Church. Philemon Homes Inc., a nonprofit corporation that owns the homes, accepted the first resident in the program in September 1998. The Sinton City Council enacted Ordinance 1999-02 in April 1999 to prohibit any “correctional or rehabilitation facility” from locating within 1,000 feet of a church, among other entities. It took more than a year for the city to enforce the ordinance against Barr’s operation, which was the only facility affected by the zoning regulation.

Barr and Philemon Homes’ brief also provides the following procedural history of the case: In August 2001, Barr and Philemon Homes sued the city in the 343rd District Court in Sinton, seeking a declaratory judgment that their rehabilitation facilities are exempt from the city ordinance. Among other things, Barr and Philemon Homes asked the court to determine whether the ordinance violated the Texas RFRA and to grant them injunctive relief. Judge Janna Whatley, presiding judge of the 343rd District Court, denied the plaintiffs’ request for temporary injunctive relief in December 2001, and they filed an interlocutory appeal with the 13th Court of Appeals, which affirmed Whatley’s decision in 2003.

On remand to the 343rd District Court, the parties waived trial and stipulated that the 2001 temporary injunction hearing before Whatley and the submitted pleadings, affidavits and briefs would constitute the record of the case. Whatley rejected the plaintiffs’ request for a permanent injunction. In December 2003, Whatley issued findings of fact and conclusions of law in which the judge concluded that enforcement of the ordinance did not impose a substantial burden on the plaintiffs’ exercise of religious faith, even though the ordinance effectively barred the facilities from operating inside the city limits.

Barr and Philemon Homes appealed to the 13th Court of Appeals, which held in November 2005 that the ordinance did not violate the Texas RFRA.

“We conclude that Pastor Barr’s religious rights were not substantially burdened by the city ordinance,” Chief Justice Rogelio Valdez wrote for the three-justice panel that decided Barr. Justice Nelda Rodriguez and then-Justice Federico Hinojosa joined Valdez in the decision.

Barr and Philemon Homes sought the state Supreme Court’s review of the case in January 2006.

No Standard Set

Kelly Shackelford, chief counsel of the Liberty Legal Institute, which also represents Barr and Philemon Homes, contends that the 13th Court panel got it wrong in Barr. “If they’re right, that would mean [a city] could literally ban a church from the city limits, and there would be no protection,” Shackelford says in an interview.

Charles “Rocky” Rhodes, a South Texas College of Law associate professor of constitutional law, says the unique aspect about the Texas RFRA is its zoning provision, Civil Practice & Remedies Code §110.010. Rhodes, who is not involved in Barr, says the provision is supposed to return the state back to the standard that existed in free-exercise cases before the U.S. Supreme Court held 6-3 in Employment Division, Department of Human Services of Oregon v. Smith (1990) that a state could punish possession of peyote as a crime without infringing a person’s right to exercise his religion.

The statute specifies that “a municipality has no less authority to adopt or apply laws and regulations concerning zoning, land use planning . . . than the authority of the municipality that existed under the law as interpreted by the federal courts before April 17, 1990.”

“That kind of begs the question of what was the law before 1990,” Rhodes says.

Rhodes says there is uncertainty over the zoning issue, because the U.S. Supreme Court has not set the standard that applies in zoning determinations that impact the free exercise of religious rights.

Villareal argued before the Supreme Court that the Legislature passed §110.010 with the “before April 17, 1990″ wording to assure city officials and concerned citizens that their authority over zoning matters would be unchanged. He said the substantial burden standard under the Texas RFRA is easier to meet than the standard under the federal Religious Land Use and Institutionalized Persons Act that Congress passed in 2000, in part to afford protection from zoning regulations for churches and religious institutions.

But Justice Nathan Hecht pointed out to Villareal that the House and Senate sponsors of the legislation � state Rep. Scott Hochberg, D-Houston, and former state Sen. David Sibley, now an Austin lobbyist � had joined in an amicus curiae brief in support of Barr and Philemon Homes. Hochberg and Sibley are included in the brief filed by the American Center for Law and Justice and the American Civil Liberties Union Foundation of Texas.

Villareal said the legislative history of the bill that enacted the Texas RFRA shows that the Legislature rejected an amendment that would have required the compelling-interest standard to be used when courts analyzed cases such as Barr.

Ho, of counsel at Gibson, Dunn & Crutcher in Dallas, told the Supreme Court that the Texas RFRA requires courts to make the government explain why it needs to apply a regulation to a particular religious activity and to show that the regulation accomplishes that goal with the least restriction on the religious activity.

“Does that elevate a religious institution to a special class that is immune from safety requirements?” Justice Harriet O’Neill asked at one point during the arguments.

In an interview after the arguments, Ho explains what he believes the Texas RFRA does: “It’s not a free pass for either government or religion. It doesn’t guarantee a particular result; it guarantees a particular process.”

Justice Phil Johnson also questioned how religious activity would be burdened even if the ordinance forced Barr to move his ministry outside the city. Johnson said he was not sure that moving would burden the religious activity, because Barr could continue the ministry somewhere else.

Ho and Villareal say they could not determine from the justices’ questions and comments how the court might rule in Barr.

Notes Villareal, “I think they’re struggling with the issues.”

Oral Arguments Online

The public can now watch live video Webcasts of oral arguments before the Texas Supreme Court.

The live Internet video streaming of arguments, which began on March 20, is a joint project of the high court and St. Mary’s University School of Law. Bill Piatt, dean of the law school, says watching live proceedings before the Supreme Court will give people a better understanding of how the appellate courts work.

Chief Justice Wallace Jefferson says, “We will shed light about how the Supreme Court decides its cases, whether to counter the misimpression that an appellate court argument is like Perry Mason in front of nine judges or to dispel myths about how justices on the court decide cases.”

Under a five-year agreement with the State Office of Court Administration (OCA), St. Mary’s is providing the Supreme Court with equipment, including cameras and audio controls, as well as the personnel to record and monitor the live streaming over the Internet. Piatt declines to disclose the amount that St. Mary’s contributed for the project.

Bruce Hermes, technology director for the OCA, says the Webcasts are set up for 300 simultaneous viewers. “After a few months, we will review it to see if that meets demand,” Hermes says. Anyone with access to a computer can tune in to the live Webcasts at or at

Mary Alice Robbins