A federal judge in Texas slighted the Roman Catholic Church in a major case involving abortion and religious liberty on Wednesday, calling the world’s largest Christian church a “sect,” and suggesting that he might not obey the federal appeals court over him, criticizing the judges who voted to reverse his initial order.
Texas law provides for disposing of the remains of unborn children in a dignified manner. Abortion providers at Whole Woman’s Health filed suit in federal court, arguing that these state laws are unconstitutional under U.S. Supreme Court precedent because the statutes ultimately impose an “undue burden” on women seeking abortions.
The Texas Conference of Catholic Bishops (TCCB) weighed in on the case, offering to provide burial services for unborn children as a way of satisfying Texas law. Judge David Ezra shocked observers by ordering the Catholic bishops to give the abortionists copies of internal church communications on abortion, an unprecedented order that the U.S. Court of Appeals for the Fifth Circuit reversed in an emergency decision as a violation of the bishops’ religious liberty.
(Ezra is a judge from Hawaii who said that courts cannot say, “There is no constitutional right here because it isn’t mentioned in the original text.”)
Judge Edith Jones – a Reagan-appointed appeals judge who is revered by constitutional conservatives as a stalwart originalist – wrote for the Fifth Circuit that on “the eve of Holy Week, a period of intense religious devotional activity,” the abortionists sought an order compelling Catholic leaders to release internal communications regarding efforts “to advance and protect its position on serious moral or political issues,” and noting that the court could find “no case directly on point” where any federal trial judge had previously issued such an invasive order against a church.
Such an order must be unconstitutional as “tantamount to judicially creating an ecclesiastical test,” Jones wrote, which would violate religious liberty under both the Free Exercise Clause and the Establishment Clause of the First Amendment.
Judge James Ho – a Trump-appointed appeals judge who has already distinguished himself with his originalist opinions on the Second Amendment and other issues – joined Jones, and also issued a concurring opinion where he stated, “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.”
Now Ezra is doubling down against the Catholic Church, referring to the church as a “sect.” In Wednesday’s final judgment against the Lone Star State, Ezra wrote:
But relying on one religious sect, the Catholic Church and its affiliated cemeteries, to honor a non-contractual promise to provide disposition services to the State of Texas is not a reliable (or conventional) option for healthcare providers required by law to inter or scatter the ashes of embryonic and fetal tissue remains.
While “sect” can often be an objective and technical term, some believe that using it in this context – rather than referring to Roman Catholics as a “denomination” or other neutral or positive term – carries a negative conotation. The court’s opinion sounds condescending and diminutive, perhaps showing a degree of hostility against the Catholic bishops.
During the trial that began the next day on July 16, Ezra made the shocking statement on the record that he was “going to absolutely ignore” the higher court’s ruling, because abiding by the Fifth Circuit order “would be a disgraceful thing for me to do.”
Such statements amount to nothing less than judicial mutiny. Trial courts are absolutely bound to follow the orders of the court of appeals with jurisdiction over them, as well as the U.S. Supreme Court.
Imagine if the shoe were on the other foot. Picture a conservative judge saying that he did not regard himself bound by Roe v. Wade, and claiming the authority to uphold a state law that completely banned abortion.
No judge likes to be reversed by a higher court, and certainly does not like it when a higher court criticizes the judge’s reasoning. But it happens all the time.
This case now goes back to the very same Fifth Circuit that reversed Ezra the first time.
The case is Whole Woman’s Health v. Smith, No. 1:16-cv-1300 in the U.S. District Court for the Western District of Texas.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.
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