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Recent Fifth Circuit decision about Texas Religious Freedom Restoration Act

By Don Cruse

Last summer, the Texas Supreme Court issued its first decision about the Texas Religious Freedom Restoration Act.

In Pastor Rick Barr and Philemon Homes, Inc. v. City of Sinton, No. 06-0074, the Texas Supreme Court adopted a framework for testing the legality of government burdens on the freedom of exercise of religion by a prison halfway house. (A few articles about that case are collected on DocketDB.)

This month, the Fifth Circuit has applied that same Texas Religious Freedom Restoration Act to a case involving a school policy that demanded a kindergartener from a Native American background cut his hair or cover its length.

In A.A. v. Needville Independent School District (5th Cir. July 9, 2010), the court held that the school policy violated the Texas Religious Freedom Restoration Act.

The panel split. Judge Higginbotham looked to Barr in construing the Texas statute broadly. Thus, even the school district’s (later) offers to let A.A. cover his long hair instead of cutting it were nonetheless substantial burdens.

Judge Jolly, in dissent, would have held that some of the school district’s “off the collar” options for the hair would not have imposed a “substantial burden” on religious exercise to trigger the act. He criticized the majority for “fram[ing] the plaintiffs’ purported religious belief not merely to be uncut long hair, but to be the visibility of hair length.”

Hat tip: Volokh, with background on state RFRA laws here.

Full post as published by Supreme Court of Texas Blog on July 20, 2010 (boomark / email).