Could a Texas hospital bar clergy visits unless a patient was facing imminent death during COVID-19?

Plain-English summary

Representative James White asked the Attorney General whether a government agency or official could limit a person's access to clergy so tightly that the person had to be facing imminent death before a religious leader of their choice could visit. The question grew out of COVID-19 visitation rules at hospitals and other medical facilities. The AG read it as a request for general guidance about how Texas law treats such restrictions, and answered through the Texas Religious Freedom Restoration Act (TRFRA) rather than deciding any specific facility's rule.

The AG began with the broad protections for religious freedom in the First Amendment, applied to the states through the Fourteenth Amendment, and in article I, section 6 of the Texas Constitution, which Texas courts have described as offering even greater protection than the federal provision. TRFRA goes further by statute: a government agency may not substantially burden a person's free exercise of religion unless the burden is the least restrictive means of furthering a compelling governmental interest. Courts analyzing a TRFRA claim ask four questions, namely whether the action burdens free exercise, whether the burden is substantial, whether the action furthers a compelling interest, and whether it is the least restrictive means.

Applying that framework, the AG advised that visiting with a religious leader is an exercise of religion even when it is not a central requirement of the faith, so cutting off access except at the point of death may burden religious exercise, and an outright ban is a substantial burden. The AG accepted that stemming the spread of COVID-19 is unquestionably a compelling interest, citing the U.S. Supreme Court. The analysis then turned on the fourth question. By 2021, many hospitals had adapted, and the federal Office for Civil Rights had resolved religious-discrimination complaints by helping facilities adopt safer visitation policies that let clergy visit at any reasonable time subject to infection-control training, fitted protective equipment, and physical distancing. Because those measures were likely less restrictive than an outright ban while serving the same public-health goal, the AG advised that a court would likely conclude an imminent-death-only rule was not the least restrictive means and therefore violated TRFRA. The AG repeated that each claim must be judged case by case on its own facts.

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The COVID-19 visitation rules discussed here were temporary emergency rules that have since expired, and the public-health emergency has ended, so the specific facility rules referenced no longer apply.

What the opinion meant for the people involved

The following describes what the opinion said at the time, not current law.

For government agencies and hospitals operating under the emergency rules, the opinion explained that a rule allowing clergy visits only when a patient faced imminent death would likely fail TRFRA's least-restrictive-means test, because safer alternatives existed. For clergy and for patients and their families, the opinion described why religious visitation counted as protected free exercise even when it was not a central tenet of the faith. For all of them, the opinion was guidance on how a court would likely weigh such a restriction, not a ruling that any particular facility's policy was unlawful; the AG said each case turns on its own facts.

Common questions

Q: What did this opinion address?
A: Whether the government could limit access to clergy during the COVID-19 pandemic so that a person had to be facing imminent death before a clergy member of their choice could visit.

Q: What did the AG conclude?
A: That such a near-total ban would likely violate the Texas Religious Freedom Restoration Act, because it was probably not the least restrictive way to serve the compelling interest of slowing COVID-19, given that safer visitation protocols existed.

Q: Did the AG say all visitation limits were illegal?
A: No. The AG accepted that stemming COVID-19 was a compelling interest and that some restrictions could be valid. The problem was an outright ban when less restrictive safety measures were available, and each case turns on its facts.

Q: What were the "less restrictive" alternatives?
A: The opinion pointed to protocols like requiring clergy to complete infection-control training, use fit-tested protective equipment, and keep physical distance from the patient, which let visits continue more safely than a flat prohibition.

Q: Did the AG decide this under the Constitution or under TRFRA?
A: Mainly TRFRA. The opinion noted that courts resolve constitutional questions only when necessary, and because TRFRA answered the question, the AG did not separately decide it under the state and federal constitutions.

Background and statutory framework

The opinion rests on three layers of religious-freedom protection: the First Amendment's Free Exercise Clause (applied to the states through the Fourteenth Amendment under Cantwell v. Connecticut), article I, section 6 of the Texas Constitution, and the Texas Religious Freedom Restoration Act in chapter 110 of the Civil Practice and Remedies Code. TRFRA defines "free exercise of religion" (section 110.001(a)(1)) and bars a government from substantially burdening it unless the action is the least restrictive means of furthering a compelling governmental interest (section 110.003(a), (b)), a strict-scrutiny test the Texas Supreme Court applied in Barr v. City of Sinton. The COVID-19 backdrop involved temporary emergency rules on facility visitation (25 Tex. Admin. Code § 133.51; 26 Tex. Admin. Code § 551.47), which by statute last no longer than 120 days plus one 60-day renewal (Tex. Gov't Code § 2001.034(c)). The compelling-interest point draws on Roman Catholic Diocese v. Cuomo, and the least-restrictive-means point on Merced v. Kasson and A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist.

Citations and references

Statutes:

• Tex. Civ. Prac. & Rem. Code ch. 110 (Texas Religious Freedom Restoration Act), §§ 110.001, 110.003
• U.S. Const. amend. I; Tex. Const. art. I, § 6; Tex. Gov't Code § 2001.034 (emergency rules)

Key cases:

• Barr v. City of Sinton, 295 S.W.3d 287 (Tex. 2009) (TRFRA strict-scrutiny framework)
• Roman Catholic Diocese v. Cuomo, 141 S. Ct. 63 (2020) (stemming COVID-19 is a compelling interest, but limits on religion must be narrowly tailored)
• Cantwell v. Connecticut, 310 U.S. 296 (1940) (Free Exercise Clause applies to the states)
• A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248 (5th Cir. 2010) (an outright ban on religiously motivated conduct substantially burdens free exercise)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0362
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0362.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 5, 2021

The Honorable James White
Chair, House Committee on Homeland Security & Public Safety
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0362

Re: Government restrictions on an individual's right of access to clergy due to the COVID-19 pandemic (RQ-0383-KP)

Dear Representative White:

You ask whether a government agency or official may restrict a citizen's free exercise of religion by requiring that the citizen must face imminent death in order to see a member of the clergy of his or her choice and not otherwise allow such visitation.¹ We understand your question as seeking general guidance about governmental limitations placed on visitation by clergy in settings such as hospitals and other medical facilities during the COVID-19 pandemic.²

Both state and federal law provide broad constitutional protections for religious freedom. The First Amendment of the U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." U.S. CONST. amend. I. The Free Exercise Clause has been applied to the States through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). In addition, the Texas Constitution provides: "No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion . . . ." TEX. CONST. art. I, § 6. Courts have opined that article I, section 6 of the Texas Constitution "provides greater protections for the free exercise of one's religion than does the federal constitution." Ex parte Herrera, No. 05-14-00598-CR, 2014 WL 4207153, at *4 (Tex. App.—Dallas Aug. 26, 2014, no pet.) (mem. op.) (citing Howell v. State, 723 S.W.2d 755, 758 (Tex. App.—Texarkana 1986, no writ)).

In addition, the Texas Legislature enacted the Texas Religious Freedom Restoration Act ("TRFRA") to prohibit government agencies from placing a substantial burden on a person's free exercise of religion unless that agency shows that the application of this burden is "the least restrictive means of furthering" a "compelling governmental interest." TEX. CIV. PRAC. & REM. CODE § 110.003(a), (b).³ In analyzing whether a statute or regulation violates TRFRA, a court must address four questions: (1) whether the government's action burdens the person's free exercise of religion; (2) whether the burden is substantial; (3) whether the regulation furthers a compelling governmental interest; and (4) whether the regulation is the least restrictive means of furthering that interest. Id.; Barr v. City of Sinton, 295 S.W.3d 287, 299 (Tex. 2009).

Under the novel circumstances surrounding COVID-19, we find no direct court authority analyzing governmental limitations on clergy visitation during the epidemic. While each of these questions must be considered on a case-by-case basis with respect to the facts of a particular plaintiff, we can provide guidance on the factors a court would consider in addressing whether a government official or agency may restrict an individual's right to access clergy of the individual's choosing during the COVID-19 pandemic, in particular whether individuals must face imminent death in order to have clergy visit them.⁴

We first address whether a government's restriction on an individual's right to access a member of the clergy could burden the person's free exercise of religion. TRFRA defines "free exercise of religion" as "an act or refusal to act that is substantially motivated by sincere religious belief." TEX. CIV. PRAC. & REM. CODE § 110.001(a)(1). In determining whether an action is substantially motivated by sincere religious belief, "it is not necessary to determine that the act or refusal to act is motivated by a central part or central requirement of the person's sincere religious belief." Id. Visiting with a religious leader may serve as a method to practice religion and express one's religious beliefs even if it is not a central requirement of a person's religion, and it therefore constitutes religious exercise. See Kikumura v. Hurley, 242 F.3d 950, 961 (10th Cir. 2001) (explaining that pastoral visits are protected activity under the federal RFRA); Rowe v. Davis, 373 F. Supp. 2d 822, 826–27 (N.D. Ind. 2005). Thus, preventing an individual from accessing a religious leader of his or her choosing, except when such individual is facing death, may burden religious exercise.

We next address whether a government's restriction on an individual's right to access a member of the clergy is a substantial burden on the person's free exercise of religion. See TEX. CIV. PRAC. & REM. CODE § 110.003(a). Whether a government's action places a substantial burden on an individual's free exercise must be considered on a case-by-case basis, taking into account the individual circumstances and the degree to which the individual's religious conduct is curtailed. A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248, 264 (5th Cir. 2010).

To say that a person's right to free exercise has been burdened, of course, does not mean that the person has an "absolute right to engage in the conduct." Barr, 295 S.W.3d at 305. We must also consider whether the regulation at issue furthers a compelling state interest. See TEX. CIV. PRAC. & REM. CODE § 110.003(b)(1). The U.S. Supreme Court has concluded that "[s]temming the spread of COVID-19 is unquestionably a compelling interest," but it recognizes that any regulations that limit religious freedom must be narrowly tailored. Roman Catholic Diocese v. Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam). Thus, the question becomes whether prohibiting visitation by a member of the clergy except in end-of-life circumstances is the least restrictive means for the government to limit the spread of COVID-19. See TEX. CIV. PRAC. & REM. CODE § 110.003(b)(2).

In considering whether an action is the least restrictive means available, courts will consider alternative means available for achieving the same government interest. See Merced v. Kasson, 577 F.3d 578, 594–95 (5th Cir. 2009) (addressing claimant's proposals for less restrictive alternatives to an outright ban on certain behavior). As hospitals and other medical facilities gain knowledge and experience in addressing COVID-19, many have adapted their visitation procedures to ensure patients have access to clergy in safe ways that protect against the spread of COVID-19. The federal Office of Civil Rights within the U.S. Department of Health and Human Services has resolved multiple religious discrimination complaints by facilitating modifications to hospital visitation policies.⁵ Those modifications allow visitation by religious leaders of a patient's choice at any reasonable time alongside implementing additional safety protocols, including requiring clergy to first receive training in infection control, use fit-tested personal protection equipment, and physically distance from the patient. These and other protocols are likely less restrictive than an outright prohibition on a patient's access to clergy. An outright "ban of conduct sincerely motivated by religious belief substantially burdens an adherent's free exercise of that religion." A.A. ex rel. Betenbaugh, 611 F.3d at 264. Thus, to the extent that other safety protocols further the government's interest in stemming the spread of COVID-19 in a manner analogous to a ban on visitation by clergy, a court would likely conclude that prohibiting an individual's access to clergy during the COVID-19 pandemic violates the TRFRA because it is not the least restrictive means of achieving the compelling interest.

¹ See Letter from Honorable James White, Chair, House Comm. on Corr., to Honorable Ken Paxton, Tex. Att'y Gen. at 1–2 (Oct. 15, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0383KP.pdf ("Request Letter").

² In response to COVID-19, various agencies adopted emergency rules regarding visitation to specific types of facilities, including hospitals, assisted living facilities, and intermediate care facilities for individuals with an intellectual disability. See, e.g., 25 TEX. ADMIN. CODE § 133.51 (Tex. Dept. of State Health Servs.) ("Visitor Screening and Access During the COVID-19 Pandemic") (expires Mar. 23, 2021); 26 TEX. ADMIN. CODE § 551.47 (Tex. Dep't of State Health Servs.) ("Intermediate care facility COVID-19 response—Expansion of Reopening Visitation") (expires Apr. 13, 2021). By statute, emergency rules are "effective for not longer than 120 days and may be renewed once for not longer than 60 days." TEX. GOV'T CODE § 2001.034(c).

³ The Texas Legislature enacted the TRFRA in response to U.S. Supreme Court decisions limiting the review of neutral, generally applicable laws applied to religious practices. See Act of May 30, 1999, 76th Leg., R.S., ch. 399, § 1, 1999 Tex. Gen. Laws 2511 (codified at Texas Civil Practice and Remedies Code chapter 110); see also Barr v. City of Sinton, 295 S.W.3d 287, 294–96 (Tex. 2009). In doing so, the Legislature ensured that actions by a government that substantially burden religion will be subject to strict scrutiny and upheld only if they are the least restrictive means of furthering a compelling governmental interest. See Barr, 295 S.W.3d at 296.

⁴ As a rule, courts decide constitutional questions only when the issue at hand cannot be resolved on non-constitutional grounds. In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). Because your questions can be addressed through application of the TRFRA, we do not separately analyze the issue under the constitutional provisions noted above.

⁵ U.S. DEP'T OF HEALTH AND HUMAN SERVS., OCR Resolves Religious Discrimination Complaints after Maryland and Virginia Hospitals Ensure Patients Can Receive Safe Religious Visitations During COVID-19 (Oct. 20, 2020), https://www.hhs.gov/about/news/2020/10/20/ocr-resolves-religious-discrimination-complaints-after-maryland-and-virginia-hospitals-ensure.html.

S U M M A R Y

Both state and federal law provide broad constitutional protections for religious freedom. The First Amendment of the U.S. Constitution provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." Article I, section 6 of the Texas Constitution provides: "No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion . . . ." Furthermore, under the Texas Religious Freedom Restoration Act, a government agency is prohibited from placing a substantial burden on a person's free exercise of religion unless the agency shows that the application of the burden is the least restrictive means of furthering a compelling governmental interest.

If an individual desires to see a member of the clergy as part of his or her religious exercise, prohibiting access to that member except when death is imminent places a substantial burden on the individual's religious exercise.

Stemming the spread of COVID-19 is unquestionably a compelling government interest. However, to the extent that other less restrictive safety protocols further the government's interest in stemming the spread of COVID-19, a court would likely conclude that prohibiting an individual's access to clergy only when facing death violates the state and federal constitutions and the Texas Religious Freedom Restoration Act because it is not the least restrictive means of achieving such compelling interest.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee