Just because a church or church organization is not a named party in a lawsuit does not mean that a church or church organization that has some role in the dispute, even a benign and neutral role, will not be served with a subpoena for documents or testimony. The extent to which the subpoena for documents will be allowed to intrude into internal church governance will in most instances be litigated. In these instances, the third party church or church organization like any other third party has certain legal protections from undue expense and intrusion. Unlike most third parties, however, church and church organizations are also protected by the First Amendment.

In Whole Woman’s Health v Smith, Slip Op. (5th Cir. 2018), the Texas Catholic Conference’s director voluntarily agreed to testify on behalf of the State of Texas in the dispute regarding whether Texas could impose on abortion clinics certain duties regarding disposal of fetal remains. The Texas Catholic Conference advocated that disposal of remains should be performed “with respect” and arranged free of charge common burial in Catholic cemeteries. The Texas Catholic Conference received a subpoena that reached internal communications ostensibly for use in cross examination of the conference’s director. Although the Texas Catholic Conference voluntarily produced four thousand pages of records arising from its communications with state officers, other catholic conferences, and Catholic cemeteries, it objected to producing its internal deliberations. The objection was heard by the court in June 2018 and the trial was set for July 2018. Indeed, the final order of the trial court was issued on Sunday, Father’s Day, and allowed 24 hours for an appeal or production of the documents. The trial court permitted a further 72 hour stay of its order to allow an appeal to the United States Court of Appeals for the 5th Circuit. However, the 5th Circuit stayed the case.

It is rare that federal judges are acrimonious in the slightest to anyone much less each other but the opinion nudged that line. The majority criticized the trial court for its unreasonably short deadlines. The dissent criticized the majority and the concurring opinions for questioning the motives of the trial judge. The 5th Circuit majority quashed the subpoena as to internal deliberations of the Texas Catholic Conference on First Amendment grounds. Other types of political action groups have received similar protection but church organizations have never needed such protection because courts avoided trying to glean non-religious from religious internal discussions on public policy issues due to Ecclesiastical Abstention Doctrine implications. The trial court reviewed the disputed documents in camera and held they were not “religious.” The 5th Circuit majority questioned whether the trial court was competent to make that determination because determining what was “religious” required church specific ecclesiastical training. The tree from which these acorns fell was the Texas Catholic Conference’s long standing public policy stance on abortion based on moral and religious grounds.

The decision highlights the risk of involvement in public policy issues. Also, church documents regarding internal policy or religious deliberations should not be submitted for in camera review when the church is not a party to the lawsuit but rather an immediate appeal taken.

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