A federal trial over the future of a Texas law requiring fetal remains to be buried or cremated got off to an unusual start Monday when the judge defended himself from a federal appeals court that questioned his motives in the case.
The dispute involved a side issue over a subpoena compelling the Texas Conference of Catholic Bishops to disclose emails and other communication detailing its support for the 2017 law and efforts to provide free burial services to reduce the law's impact.
The bishops appealed, and a panel of 5th U.S. Circuit Court of Appeals judges quashed the subpoena Sunday in a 2-1 ruling that took issue not only with the subpoena _ which was sought by abortion providers to aid in cross-examination _ but also the rapid pretrial schedule adopted by the trial judge, Senior U.S. District Judge David Ezra.
In particular, the opinion's author, U.S. Circuit Judge Edith Jones, admonished Ezra for supporting a subpoena effort she said appeared to be an attempt by abortion providers to intimidate the bishops from providing trial testimony in support of the law.
Judge Jim Ho, recently nominated to the appeals court by President Donald Trump, went further in a concurring opinion that called the lower court's order to turn over the documents "troubling" and an apparent attempt to "retaliate against people of faith for not only believing in the sanctity of life _ but also for wanting to do something about it."
Ezra began the trial in the Austin federal courthouse by saying he had worked out the rapid pretrial schedule with lawyers from both sides in an attempt to accommodate the state of Texas, which has been blocked from enforcing a law that was to take effect Feb. 1 while the matter is litigated.
"It had nothing to do with some sort of effort to rush this case to trial to disadvantage the bishops. The lawyers know that. I'm just sorry the majority opinion didn't know that," Ezra said.
Ezra said he brought no bias or preconceived notions about the law's constitutionality to the case, saying he would make his decision based on information submitted by lawyers during the five days set aside for the trial.
But the judge also said he gave lawyers for Texas Attorney General Ken Paxton an opportunity to seek his recusal from the case for perceived bias hinted at by the two appeals court judges. They declined, he said.
Ezra also said he was going to "absolutely ignore" statements that Jones and Ho included in their opinions that appeared to support the fetal-burial law, saying their statements strayed into considering the merits of the case instead of focusing solely on the side issue of the subpoena.
Following the apparent suggestions on how to rule "would be a disgraceful thing for me to do," he said, raising particular concerns about Ho's concurring opinion without specifying what he found objectionable.
In his opinion, Ho _ a former solicitor general in the Texas attorney general's office _ said the lower-court ruling strayed from the original understanding of the U.S. Constitution.
"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 wrote.
"By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains," Ho wrote. "But from the proceedings below, you would think the opposite were true."
Writing in dissent, Judge Gregg Costa _ appointed by President Barack Obama _ accused Jones of taking "potshots" at Ezra and Magistrate Judge Andrew Austin, who initially approved the subpoena, and Ho of "piling on" by calling into question something he could only guess at: their motives in supporting the subpoena.
Costa also noted that the majority acknowledged that they had not looked at the withheld communications to determine if "the First Amendment concerns that today's decision can only speculate about actually exist."
"Two judges _ the magistrate and district judge _ reviewed those documents. The magistrate concluded, and the district court agreed, that 'the emails ... have no religious focus, do not discuss church doctrine or governance, and are more or less routine discussions of the burial services at issue here,'" Costa wrote.
