A federal appeals court ruled 2-1 in a very rare Sunday night emergency decision that Catholic bishops in Texas do not need to disclose internal communications about abortion to abortionists, reversing a federal trial court’s order to do so in a case that appellate judges saw as an attempt to intimidate people of faith into silence.
“The Texas Conference of Catholic Bishops (TCCB) is an unincorporated ecclesiastical association that furthers the religious ministry of the Roman Catholic Bishops and Archbishops in the State of Texas,” Judge Edith Jones wrote for the U.S. Court of Appeals for the Fifth Circuit. “The Catechism of the Catholic Church teaches that the dignity of all human life demands respect and that abortion is gravely sinful.”
The case involved a public-policy debate in Texas about amending state regulations for disposing of the remains of unborn children. TCCB’s representative testified in Texas about the Catholic belief that the bodily remains of unborn children “should be disposed of with respect.”
Jones continued for the three-judge panel that in 2018 on “the eve of Holy Week, a period of intense religious devotional activity,” lawyers representing abortionists from Whole Woman’s Health served TCCB with a subpoena demanding all the bishops’ documents – including “confidential internal or religious communications” – about this matter. The documents were due shortly after Easter, meaning that the Catholic leaders and staff would have to work through most of the Easter holiday.
The federal trial court in western Texas admitted that TCCB – represented in this case by Becket Law – had shown “that enforcing production of the internal communications would chill the exercise of [the bishops’] rights,” but allowed the legal demand to go forward anyway.
The Fifth Circuit appellate court criticized that decision, saying that the lower court’s “analysis was incorrectly dismissive of the seriousness of the issues raised by TCCB.” Jones added:
It is no accident that we have found no case directly on point on the issue of compelling discovery of 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.
The appellate panel noted that complying the subpoena would cost the bishops over $20,000 in attorneys’ fees, that it caused TCCB to miss “ministry opportunities,” and would cost it relationships by having to disclose numerous private messages from other Catholic groups. “Why the district court found ‘chilling’ but not ‘severe’” the impact of this discovery order, and so decided to allow it, “is hard to fathom.”
“Both Free Exercise and Establishment Clause problems seem inherent in the court’s discovery order,” Jones observes. Allowing judges to parse internal notes to determine which are “facts” versus “religious” and observe how Catholic leaders make decisions on this “matter of intense doctrinal concern” would seem “tantamount to judicially creating an ecclesiastical test in violation of the Establishment Clause.”
The New Orleans-based appeals court added that “the importance of securing religious groups’ institutional autonomy, while allowing them to enter the public square, cannot be understated.”
“TCCB has been challenged by the plaintiffs to either produce internal communication documents or withdraw its witness,” the majority noted. “This looks like an act of intimidation.”
Judge Jim Ho joined Judge Jones’ opinion for the court in full and also wrote a separate concurring opinion.
“It 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 Trump-appointed Ho began.
That is hardly surprisingly, because the district court judge in this case, Judge David Ezra, began as a Reagan appointee, but is a leftwing judge from Hawaii who is rendering temporary service in Texas. Ezra is known for saying, “You can’t simply say, ‘There is no constitutional right here because it isn’t mentioned in the original text.’ You do have to look at the law in view of what is happening today.”
“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,” Ho continued.
The district court’s proceedings “leave this court to wonder why the district court saw the need to impose a 24-mandate on the Bishops on a Sunday (Father’s Day, no less),” Ho adds, “if not in an effort to either evade appellate review—or tax the Bishops and their counsel for seeking review.”
Ho said that his court is left to wonder if the efforts to get internal church documents were “to retaliate against people of faith for not only believing in the sanctity of life—but also wanting to do something about it.”
Drawing a tie to other social controversies, Ho cited to the Supreme Court’s recent Masterpiece Cakeshop case (of a Christian baker declining to customize a wedding cake to celebrate a same-sex marriage). He also quoted Justice Samuel’s Alito comment when the Supreme Court refused to take an earlier case, named Stormans, involving religious rights of conscience on abortion. Alito called the refusal to take up the appeal “an ominous sign” and that “If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.”
Judge Gregg Costa is an Obama-appointed judge who dissented from the Fifth Circuit’s decision voting in favor of the abortionists’ demand for the Catholic bishops’ internal communications.
The case is Whole Woman’s Health v. Smith, No. 18-150484 in the U.S. Court of Appeals for the Fifth Circuit.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.