Bench Memos

Law & the Courts

Fifth Circuit Blocks Outrageous Discovery Order Against Texas Catholic Conference

Last month, I called attention to an outrageous discovery order, and associated procedural shenanigans, by federal district judge David Ezra in a case in which abortion providers are challenging a provision of Texas law that would require them to bury or cremate fetal remains. In brief, in a transparent effort to punish the Catholic bishops in Texas for offering to provide free burial of fetal remains, the abortion providers subjected the Catholic bishops (who aren’t even parties to the case) to abusive discovery requests that sought to intrude on their internal communications. And Judge Ezra seemed bizarrely eager to do their bidding.

I’m pleased to report that a Fifth Circuit panel, on emergency appeal, has blocked Judge Ezra’s order. As Judge Edith Jones sums things up in her majority opinion (over a dissent), Judge Ezra’s “analysis was incorrectly dismissive of the issues raised by TCCB” (the Texas Conference of Catholic Bishops):

The court erred in determining that TCCB waived its claim of protection under RFRA. The court’s analysis of the free exercise and establishment clause claims begs the fundamental, novel issues presented under these circumstances. The court’s rejection of the free speech, association, and petition claims too narrowly construes the nature of chilling effects on those rights while overbroadly interpreting the importance to the plaintiffs of the discovery sought here.

Here’s a longer excerpt from Judge Jones’s excellent opinion (emphasis in original):

Contrary to the district court, … the explanation of how TCCB’s activities—and the activities of any other religious institution forced to endure similar discovery—are “chilled” by enforcement of this subpoena seems self-evident. As TCCB describes, in addition to the significant cost of complying with the original subpoena (100 work hours and over $20,000 in attorney’s fees), TCCB has delayed and missed ministry opportunities; suffered in relationships with other Catholic ministries whose communications it was forced to disclose; was required to cancel internal ministry reports and training materials; TCCB bishops and staff were discouraged from engaging in other public policy activities; and Texas Catholic cemeteries were deterred from participating in the fetal remains registry. TCCB’s ability to conduct frank internal dialogue and deliberations was undermined, and not only because enforcement of the subpoena inhibits the further use of email communications. Why the district court found “chilling” but not “severe” its discovery order’s impact on TCCB’s internal email communications, in this era of instant group communication, is hard to fathom. Even more disturbing, this discovery order forces TCCB to turn over to a public policy opponent its internal communications, setting a precedent that may be replicated in litigation anywhere.

These burdens flow naturally into TCCB’s arguments for a privilege based on the structural protection afforded religious organizations and practice under the Constitution. “[I]t is easy to forget that the autonomy of religious groups . . . has often served as a shield against oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 199-200, 132 S. Ct. 694, 712 (Alito, J., concurring) (citing Kedroff, 344 U.S. at 116, 73 S. Ct. at 154-55). Both free exercise and establishment clause problems seem inherent in the court’s discovery order. That internal communications are to be revealed not only interferes with TCCB’s decision-making processes on a matter of intense doctrinal concern but also exposes those processes to an opponent and will induce similar ongoing intrusions against religious bodies’ self-government. Moreover, courts’ involvement in attempting to parse the internal communications and discern which are “facts” and which are “religious” seems tantamount to judicially creating an ecclesiastical test in violation of the Establishment Clause.

In addition to joining Judge Jones’s opinion, Judge James Ho wrote a brief concurring opinion that forcefully states:

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 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.

But from the proceedings below, you would think the opposite were true.

Those proceedings are chronicled in Judge Jones’s comprehensive opinion for the Court. And they are troubling. They leave this Court to wonder why the district court saw the need to impose a 24-hour mandate on the Bishops on a Sunday (Father’s Day, no less), if not in an effort to either evade appellate review—or tax the Bishops and their counsel for seeking review. They leave this Court to wonder if this discovery is sought, inter alia, to retaliate against people of faith for not only believing in the sanctity of life—but also for wanting to do something about it.

Somehow I suspect that the Fifth Circuit is going to have more errors by Judge Ezra to correct in this case.

Congratulations to the Becket Fund for Religious Liberty for its outstanding work on behalf of the Texas bishops on this appeal.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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