Texas Proposition 3: A State Constitutional Response To Restrictions On Religious Gatherings

Abstract

For centuries, religious groups of all faiths have assembled for in-person gatherings. For most of modern American history, civil law posed little or no barrier to this practice. The COVID-19 pandemic changed that. From the outset of the pandemic, state and local officials issued orders restricting in-person religious gatherings. Some prohibited religious gatherings of all sizes, while others placed restrictions on capacity or limited certain religious practices. As with most things in modern American life, legal challenges ensued, and outcomes varied greatly. Many turned to federal courts, seeking to enjoin state action under federal law. Others have taken a different approach: utilizing the substantive liberty guarantees of state constitutions. These proponents of religious liberty have turned to state constitutions for greater protection of religious gatherings during times of public emergency. In 2021, Texas voters approved their response to the COVID-era restrictions on religious gatherings: an amendment to their state constitution prohibiting government limitations on religious services. This Article analyzes that amendment by discussing its origins, scope, and potential conflict with the federal Establishment Clause.

Keywords: Free Exercise Clause, State Constitutions, Texas Constitution, COVID-19