holding “[b]oth free exercise and establishment clause problems seem inherent in the court’s discovery order” after a trial court entered a discovery order requiring a religious organization’s production of internal communications
How later courts described this case
- holding “[b]oth free exercise and establishment clause problems seem inherent in the court’s discovery order” after a trial court entered a discovery order requiring a religious organization’s production of internal communications
- refusing to compel discovery of a third-party religious group’s “internal communications” in part because the order “interfere[d] with [the group’s] decision-making processes,” “expose[d] those processes to an opponent,” and “w[ould] induce similar ongoing intrusions against religious bodies’ self-government”
- reversing “disturbing” and “ill-informed” district court order that “looks like an act of intimidation” issued “in unnecessary haste”
- asserting that order falls within collateral order doctrine because, in part, third-party witness appealing "cannot benefit directly from" any post-final judgment relief
Written by the judges who cited it.
The opinion
JAMES C. HO, Circuit Judge, concurring:
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. See, e.g. , Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n , --- U.S. ----, 138 S.Ct. 1719 , --- L.Ed.2d ---- (2018).
I join Judge Jones's excellent opinion, with regret that the relief we grant today is even necessary. See Stormans, Inc. v. Wiesman , --- U.S. ----, 136 S.Ct. 2433 , 195 L.Ed.2d 870 (2016) (Alito, J., joined by Roberts, C.J., and Thomas, J., dissenting from denial of certiorari) ("This case is an ominous sign. ... 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.").