Posted by: Patricia Salkin | July 6, 2009

TX Supreme Court Finds City Ordinance Preventing Use of Homes for Ministry for Released Convicts Violated State RFRA

In 1999, Texas enacted the Religious Freedom Restoration Act (TRFRA) which provides that, “a government agency may not substantially burden a person’s free exercise of religion [unless it] demonstrates that the application of the burden to the person . . . is in furtherance of a compelling governmental interest [and] is the least restrictive means of furthering that interest.” 

Barr, a City resident (an ex-convict), as part of a religious ministry, offered men who were low level offenders and recently released from prison free housing, religious instruction and counseling in two homes he owned.  The organization run by the resident had the stated purpose of “[c]reating bridges to enable the Christian inmate to go from prison to the local church through Biblical discipleship.”  Applicants for the program were required, among other things, to sign a “statement of faith” in basic Christian beliefs and agree to a long list of behavioral guidelines which stressed that the program as a “biblical ministry, NOT a social services agency.” At the time the ministry began, the City had no zoning or other restrictions on the use of the homes.  In January 1999, following a discussion with the mayor, the city manager and the police chief, Barr presented his ministry before the City Council.

Following a public meeting where people showed up expressing both support and opposition to the use, the City of Sinton enacted an ordinance prohibiting parolees from living within 1,000 feet of churches and schools and certain other areas.  In essence, this prohibited the religious ministry from operating out of the two homes, and it effectively banned the ministry from the City.  Barr continued to operate the ministry, but after the City notified the State Board of Pardons and Paroles that Barr was operating in violation of a City Ordinance, they refused to allow additional placements there.

Barr sued the City alleging that the ordinance violated the TRFRA. The Texas Supreme Court held that TRFRA’s strict scrutiny does apply to zoning ordinances (overturning the Court below on this point).  The Court then noted its analysis would proceed with the following four questions raised by this case, with each succeeding question contingent upon an affirmative answer to the one preceding: 1) Does the City’s Ordinance burden Barr’s free exercise of religion as defined by TRFRA?; 2) Is the burden substantial?; 3) Does the ordinance further a compelling governmental interest?; and 4) Is the ordinance the least restrictive means of furthering that interest? Noting that the fact that a halfway house can be secular, the Court said that this does not mean that it cannot be religious. The Court found that “the record easily establishes that Barr’s ministry was ‘substantially motivated by sincere religious belief’ for purposes of TRFRA.” Next, noting that the phrase “substantially burden” the right to free exercise is not defined in the statute (nor is it defined in RLUIPA), turning to the ordinance meaning of the phrase the Court found that the phrase has two basic components: “real vs. merely perceived” and “significant vs. trivial.” Like the Fifth Circuit, in refusing to define a bright line test for what constitutes “substantial burden” on the exercise of religion, the Court said that such determination requires a case-by-case fact specific inquiry. Here, the Court found no hesitation in concluding that the ordinance substantially burdened Barr’s ministry since it effectively prevented him from operating anywhere in the City.  The Court did note, that “A restriction need not be completely prohibitive to be substantial; it is enough that alternatives for the religious exercise are severely restricted.” Turning to the City’s argument that the ordinance furthered compelling governmental interests in advancing safety, preventing nuisance and protecting children, the Court found no evidence to support this.  In fact, the Court noted evidence to the contrary.  Therefore, the Court determined that the City ordinance, as applied to Barr’s ministry, violates TRFRA.  

Barr v. The City of Sinton, 2009 WL 1712798 (Tex. 6/19/2009).

The opinion can be accessed at:

The oral argument can be watched here

Special thanks to Daniel Dalton of Tomkiw Dalton, PLC in Royal Oaks, Michigan for sending along word of this case.

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