Bench Memos

Law & the Courts

Judicial Winning: Andrew Oldham

Before being appointed by President Trump to serve on the U.S. Court of Appeals for the Fifth Circuit, Andrew Oldham had a distinguished career as an appellate litigator. A former law clerk to Justice Alito, Oldham was an attorney-adviser in the Justice Department’s Office of Legal Counsel before working in private practice at Kellogg Hansen. Oldham went on to serve as Texas’s Deputy Solicitor General and General Counsel to Governor Greg Abbott.​

Since becoming a judge, Oldham has demonstrated a staunch commitment to protecting the Bill of Rights.  Consider his recent concurrence in Word of Life Church of El Paso v. State Farm Lloyds.  In that case, a church had an insurance policy that insured the church’s leaders against lawsuits “directly related” to the operations of the church. One of the issues in the case concerned the First Amendment’s religious freedom protections, and whether a lower court can purport to decide what types of activities are “typical” for a religious organization.

A pastor of the church was sued by El Paso’s mayor after the pastor led a campaign to promote “traditional family values by making health benefits available only to city employees and their legal spouse and dependent children.”

The insurance company refused to cover the mayor’s lawsuit against the pastor and the church.  The church sued, but a lower court found for the company, holding that the pastor’s actions were not directly related to the church’s operations. The lower court reasoned that “political campaigning” is not “an activity typical of the operations of a religious organization.”

The Fifth Circuit reversed. As Judge Oldham noted, the pastor swore in a signed affidavit that his actions were in furtherance of a ministry of the Church. “[I]t’s not the role of a federal judge,” Oldham explained, “to tell a church whether its activities are ‘typical.’” A court’s “job is to decide cases.”

Judge Oldham added that because the insurance policy covered operations relating to the Word of Life Church, and not a “typical” church, the lower court was wrong to impose an additional burden on the church by making its insurance policy coverage turn on “which of its activities a secular court will consider religious.” Quoting Justice Thomas’s concurring opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, Judge Oldham explained that because judges “may or may ‘not understand [a church’s] religious tenets and sense of mission,’” they must be particularly mindful of the religious freedoms guaranteed by the First Amendment.

Judge Oldham’s short but powerful concurring opinion exemplifies how federal judges ought to operate in our constitutional system.  A commitment to defending liberty and the Bill of Rights often means, in the context of the judiciary, recognizing that a judge’s role is limited to interpreting the law and deciding the cases that come before him. When judges try to go beyond that role, individual rights and faith in the judiciary itself suffer.

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