The Religious Freedom Restoration Act

In 1993, Congress enacted the Religious Freedom Restoration Act (RFRA), which adopted the compelling interest test established in two prior U.S. Supreme Court cases (Sherbert v. Verner, 374 U.S. 398 (1936) and Wisconsin v. Yoder, 406 U.S. 205 (1972)).  RFRA, which applied to both federal and state governments, prohibits a “[g]overnment from ‘substantially burdening’ a person’s exercise of religion even if the burden ‘(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’”  City of Boerne v. Flores, 521 U.S. 507, 515-16 (1997).  In 1997, the U.S. Supreme Court in Boerne found that RFRA was unconstitutional as applied to the states.  Id. at 532-36.  It remains in effect as to federal actions. Three years later, Congress enacted another federal law to overcome the problems as to applicability to state and local governments – the Religious Land Use and Institutionalized Persons Act (RLUIPA), which protects the religious freedom of (1) religious persons and institutions in the land use context and (2) prisoners.

Thirteen states, however, decided to take matters into their own hands by enacting state counterparts to RFRA.  Texas is one of these states.  The Texas Freedom Restoration Act (TRFRA) prohibits any governmental agency in Texas from “substantially burden[ing] a person’s free exercise of religion” unless the agency can “demonstrate 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.”  Tex. Civ. Prac. & Rem. Code § 110.003(a)(b).

Big Heart Ministries

Big Heart Ministries Association, Inc. (Big Heart) is a religious organization that serves and ministers to the unsheltered homeless population in Dallas, Texas.  Big Heart was established in 1980 and believes that God and the Bible compel mankind to share food and prayer with the homeless.  Big Heart is a church, but not in the traditional sense; instead of housing the church in a building, Big Heart is a “street church” that seeks to feed the homeless on the streets, where they often live.  Edwin Don Hart, an ordained minister who established Big Heart, describes the homeless served by Big Heart as “street level people, and they’ve got to be reached where they are.”

Big Heart’s religious practice requires that each week it loads food and cookware into two trucks, one of which is equipped for food preparation, and travel to a feeding location to set up a “street church” to feed the poor.  At the feeding location, Big Heart sets up large tents, generators, a propane stove, and pots and pans to be used for cooking.  Big Heart typically has approximately 40 volunteers on site, 5 to 8 of whom have completed the City’s food safety course on food handling and storage.  There is a worship service during each meal and everyone dines together.  Big Heart also provides personal counseling and assistance to the homeless, such as help finding a job or getting in touch with their families.  After each meal, Big Heart requires its patrons to pick up all of the trash to keep the property clean.

Rip Parker Memorial Homeless Ministry

Rip Parker Memorial Homeless Ministry (Rip Parker) is also a religious organization serving and ministering to the unsheltered homeless population in Dallas, Texas.  Rip Parker’s philosophy is based on the religious belief that “if you see another person suffering, you help him right there, where he is.  ‘You do not walk away; you pick him up, dress his wounds, and help him get on his way.’”  “Rip Parker’s mission is to train its volunteers to find the hungry and homeless, provide them with nutritious meals, and develop a relationship with them, so over time, the volunteers can help the homeless become self-sufficient.”  Rip Parker fulfills its religious mission by identifying the location of the homeless, going to them, and giving them food and comfort to begin to gain the homeless person’s trust, and develop a relationship with them in an attempt to alter or change their lives.  Rip Parker describes this as a “very long process.” 

Rip Parker feeds the homeless once each weeknight and twice on Saturdays.  Each night, Rip Parker goes to 10 to15 different locations to feed the homeless.  The volunteers “talk to [the homeless people] individually, one-on-one.  [They] share with them, [] take Bibles to them . . . [they] are constantly praying with them and sharing [their religious] beliefs with them, telling them that God loves them and trying to get them off the streets.”

Rip Parker serves the homeless through its mobile feeding site because it is difficult for the homeless to pack-up and carry their belongings to a central site.  “The unsheltered homeless are very attached to their few belongings and it is difficult for them to leave that to go to a fixed feeding site.”  Being mobile also allows Rip Parker’s volunteers to reach more people – approximately 60 to70 a night – people the shelters are unable to serve.  It coordinates over 10,000 volunteers each year to help the homeless.  At least one volunteer on-site feeding the homeless has completed the City’s food safety course. 

City of Dallas’s Homeless Outreach Team

Like Big Heart and Rip Parker, the City of Dallas has undertaken measures to assist its homeless population.  The City established a Crisis Intervention Unit under which there operates a Homeless Outreach Team made up of four former mental health professionals, whose job it is to link the unsheltered homeless with shelters, medical care, and other types of treatment.  The Team’s goal is to “identify what is going on in these individuals’ lives and to connect them to treatment or shelter services.”

Unlike Big Heart and Rip Parker, the caseworkers never bring food to the homeless on the streets because they believe this would discourage the homeless from going to shelters.  In other words, the City believes that the homeless are persuaded to leave the streets through promises of food and security.  According to the City, the homeless individuals’ access to food, through such organizations as Big Heart and Rip Parker, inhibits its ability to persuade the homeless to leave the streets to receive services.  The City seeks to “remove as much enabling as we possibly can.”

The Ordinance

In 2005, the City enacted Dallas’s Food Establishment Ordinance, the stated purpose of which is “to safeguard public health and provide to consumers food that is safe, unaltered, and honestly presented.”  Dallas City Code § 17-1.1; Tex. Admin. Code § 229.161 et seq.  Section 17-1.6(5) of the Ordinance, known as the “Homeless Feeder Defense” provides that an organization does not have to comply with the Ordinance if it satisfies the following criteria:  (1) obtain location approval from the City; (2) provide restroom facilities on-site; (3) have equipment and procedures for disposing of waste and washwater; (4) make available handwashing equipment and facilities, including a five-gallon container with a spigot and a catch bucket, soap, and individual paper towels; (5) register with the City (6) receive written approval from the property owner on whose property the homeless would be fed; (7) have a person present at all times who has completed the City’s food safety training course; (8) comply with food storage and transport requirements; and (9) ensure the feeding site is kept in a clean condition.

The Lawsuit

Big Heart attempted to comply with the Ordinance, but was unable to satisfy its requirements.  Big Heart continued to feed the homeless despite non-compliance with Ordinance.  Dallas police and code enforcement officials began to confront Big Heart’s volunteers at feeding sites and issued several notices of violation for allegedly operating in violation of the Ordinance.  On one occasion, 13 police cars and police came to a feeding site and threatened volunteers with enforcement of the law.  The presence and threat of police caused volunteers to stop volunteering.  Ultimately, Big Heart was forced to terminate its services as a result of the Ordinance.

Rip Parker also was unable to comply with the Ordinance and has been issued hundreds of notices of violation.  Police have confronted Rip Parker and its volunteers and made it very difficult to feed the homeless at different locations.  The police would show up at feeding sites, aggressively engage the volunteers, and sometimes force them to leave.  Rip Parker lost approximately 98% of all volunteers in recent years for fear of harassment by code enforcement officials.  The homeless also feared harassment by the police, namely by having their belongings disposed of, or being sent to jail.

Big Heart and Rip Parker sued the City under TRFRA, alleging that the City’s actions in enacting the Ordinance have substantially burdened their religious exercise without a compelling governmental interest, and not under the least restrictive means possible.

First, the Court found that Big Heart and Rip Parker’s services were sincerely-held religious beliefs, even though Rip Parker’s members were primarily church groups of different Christian denominations who shared the unified mission of fulfilling Christ’s command to feed the poor.

Second, in analyzing TRFRA’s substantial burden clause, the Court focused on the degree the religious institutions’ conduct was curtailed and the impact on religious expression from the institutions’ perspective, not the government’s.  The Court found the Ordinance substantially burdened Plaintiffs’ religious exercise because:

  • Big Heart is unable to purchase, store, transport, or rent “portable toilets or other restroom facilities for the homeless and for persons preparing and serving food to the homeless,” pursuant to the Ordinance.  Similarly, Rip Parker cannot transport toilet facilities in its volunteers’ cars or rent them at each site at each outing.
  • It is impossible for every Rip Parker volunteer to transport a five-gallon container, a catch basin, soap, and paper towels at each location, as required by the Ordinance.  Further, the amount of time Plaintiffs would have to spend complying with the requirement that they collect wastewater after each handwashing and dispose of it in a government-approved manner would place a substantial burden on their religious practice.
  • The requirement that Plaintiffs obtain the consent of the landowner is intrusive, onerous, and substantially burdensome because the owners are unwilling to let Plaintiffs use their property as a feeding site when they learn they must fill out paperwork and have the City become involved.

Next, the Court concluded that the City was not able to demonstrate a compelling governmental interest in substantially burdening Plaintiffs’ religious exercise.  It found the following interests were not compelling governmental interests because they were too “broadly formulated:” (1) protecting the health, safety, and welfare of its citizens; (2) protecting the homeless and the feeders; and (3) protecting the dignity of the homeless.  It also found that the City failed to present specific evidence – rather than mere speculation – as to the following claims it contended were compelling governmental interests: (1) the Ordinance prevents the spread of foodborne illness; (2) protecting property owners’ rights and preventing trespassing; (3) ensuring the safety of the feeders; and (4) preventing the homeless from urinating and defecating in public.  Further, there was no evidence of street congestion caused by Plaintiffs’ feeding the homeless, as the City alleged.  Also, the City’s claim that providing services to homeless by persuading them to accept social services was a compelling governmental interest was belied by its admission of low success rates.

The decision is available at

Information about Big Heart is available at

Photographs of Big Heart’s “street church” are available at

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.