Bolivar church's fight with archdiocese belongs in state court, federal judge rules

John Suayan, Galveston Bureau Jul. 30, 2009, 3:56am

Our Mother of Mercy Catholic Church on the Bolivar Peninsula before Hurricane Ike struck.

GALVESTON – The fight by a group of Port Bolivar residents to stop the Galveston archdiocese from demolishing a church is not a First Amendment issue, a federal judge ruled recently.

In the aftermath of Hurricane Ike, the Archdiocese of Galveston-Houston made plans to tear down the last remaining Catholic church on the Bolivar Peninsula, but concerned parishioners from Our Mother of Mercy Catholic Church fought to save it.

Church members obtained a temporary restraining order in state court, but the archdiocese argued that it dealt with civil rights issues and belonged in federal court.

However, U.S. District Judge Melinda Harmon on July 21 ruled that the matter should remain in state court.

"This raises property rights issues, not First Amendment free exercise or establishment clause issues, and a civil court may resolve property disputes providing it does not impermissibly stray into deciding ecclesiastical questions," Judge Harmon writes.

The parishioners obtained a temporary restraining order against the archdiocese from Galveston County 122nd District Court Judge John Ellisor.

The archdiocese had argued that the state court's involvement violated the separation of church and state as mandated by the First Amendment.

Judge Harmon, however, rejected that argument.

"The court is not persuaded by the defendant's attempt to frame the case as one arising under the free exercise and establishment clauses of the First Amendment," she wrote.

"There is no federal question apparent from the face of the plaintiffs' initial application for a temporary restraining order, and the plaintiffs are seeking relief in accordance with state, not federal law."

Our Mother of Mercy was one of the few structures on the peninsula that sustained minimal damage from Hurricane Ike's assault on Southeast Texas last September.

The attendees claim the long history of the parish and the condition of the church building after the Category 2 storm were enough to preserve Our Mother of Mercy from the archdiocese's wrecking ball.

Parishioners also argued they would have to travel much farther to attend Mass if the church was destroyed.

Federal Case No. 09CV0916,

State Case No. H-09-1875

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