Texas attorney general: Religious schools exempt from local COVID rules

CNA Staff, Jul 20, 2020 / 15:12 pm

The attorney general of Texas on Friday told religious private schools in the state that local governments are not allowed to order them to close or to dictate COVID-19 precautionary measures to them.

"[A]s protected by the First Amendment and Texas law, religious private schools may continue to determine when it is safe for their communities to resume in-person instruction free from any government mandate or interference. Religious private schools therefore need not comply with local public health orders to the contrary," Texas Attorney General Ken Paxton wrote in a July 17 letter.

Paxton said local public health ordinances must be consistent with the governor's orders and the attorney general's guidance, adding that local governments are "prohibited from closing religious institutions or dictating mitigation strategies to those institutions."

Paxton cited the U.S. and Texas state constitutions, as well as the Texas Religious Freedom Restoration Act, in asserting that the state cannot "substantially burden" the free exercise of religion, which includes the ability of faith communities to educate their youth, "unless it can demonstrate a compelling interest for the restriction and prove it applies in the least restrictive way."

Blanket closings on religious institutions are not the least restrictive means of containing the virus, he asserted.

Some Texas counties, including Dallas and El Paso, have issued mandates barring in-person classes for public and private schools in their jurisdictions, at least through August and in some cases to the end of September, the Texas Tribune reported.

Travis County, which encompasses Austin, issued an order July 16 barring face-to-face instruction, as well as extracurricular activities, in all schools until Sept. 8.

"If local public health orders are inconsistent with [state] authorities, the local orders must yield," Paxton said.

Governor Greg Abbott had also exempted houses of worship from the statewide masking order, while at the same time encouraging the houses of worship themselves to require masks.

"Religious education is vital to many faiths practiced in the United States." For example, "[i]n the Catholic tradition, religious education is 'intimately bound up with the whole of the Church's life,'" he wrote, quoting the Catechism.

Religious freedom scholars in the U.S. have generally suggested that state and local governments have significant authority to limit religious gatherings in an epidemic, but they must limit religious activities no more strictly than comparable activities.

Public schools in Texas are set to open later than usual and most likely will provide remote instruction initially. Texas officials have announced that public school districts will be allowed to delay on-campus instruction for at least four weeks, the Texas Tribune reported.

The public school district of Houston, the state's largest, has announced that it will start the new school year remotely Sept. 8, remaining remote until at least Oct. 19, although that could change depending on coronavirus rates in the community and guidance from health officials, the Washington Post reported.

Texas had 325,000 confirmed COVID-19 cases as of Monday.