In Win for Religious Freedom, Fifth Circuit Court of Appeals Reminds Us Why Judicial Nominations Matter
by Travis Weber
July 17, 2018
Two days ago, in a 2-1 decision, the U.S. Court of Appeals for the Fifth Circuit ruled in favor of the freedom of the Texas Conference of Catholic Bishops to live out their faith as it pertains to pro-life issues. Close votes like this remind us of the importance of judicial nominations, along with why it matters that we have judges who understand religious freedom law.
After Texas passed a law requiring the remains of unborn children to be properly cared for, pro-abortion groups challenged it, and used the lawsuit to harass and compel information from the Texas Conference of Catholic Bishops (TCCB)—who had been supportive of caring for these babies’ remains. The TCCB wasn’t even a party to the case, but out of animus against its pro-life work, the pro-abortion groups tried to force it to turn over all sorts of internal communications which normally would not be disclosed as part of the discovery process. Unfortunately, in a bizarre sequence of actions for which we may never know the reason, a district court judge obliged the abortion groups, forcing the TCCB to turn over internal communications pertaining to the group’s motivations and religious workings in violation of the First Amendment—all under a ridiculously tight timeline—and all on a Sunday, Father’s Day, no less.
Thankfully, the Fifth Circuit reversed this absurd discovery order, with Judge Edith Jones penning the opinion, joined by Judge James Ho (a recent Trump appointee). Judge Jones wrote that the lower court’s “analysis was incorrectly dismissive of the seriousness of the issues raised by TCCB,” such as the inherent danger in forcing groups to disclose “internal communications within a religious body concerning its activities in the public square to advance and protect its position on serious moral or political issues”—which the First Amendment clearly protects.
Agreeing with Judge Jones, newly-confirmed Judge James Ho wrote in a separate concurrence that “[i]t is hard to imagine a better example of how far we have strayed from the text and original understanding of the Constitution than this case. The First Amendment expressly guarantees the free exercise of religion—including the right of the Bishops to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains. By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains.”
He concluded that the “proceedings below” are “troubling,” and “leave this Court to wonder if this discovery is sought … to retaliate against people of faith for not only believing in the sanctity of life—but also for wanting to do something about it.”
Indeed. We have seen this type of harassment of religious groups before, when the City of Houston sought internal communications from pastors and churches during a lawsuit to which they were not parties—actions reasonably expected to harass these pastors and chill their activities in violation of the First Amendment.
The fact that the Fifth Circuit’s ruling was decided by one vote should remind us all of the importance of confirming good jurists like Judges Jones and Ho, and the cost of not doing so. Our religious freedom, and our nation’s fidelity to the Constitution, hang in the balance.