Some Trump-appointed judges keep sneaking Biblical reference into court opinions

Some Fifth Circuit judges have trouble keeping separate church and state

Published May 19, 2024 6:00AM (EDT)

 (<a href=''>Olivier Le Queinec</a> via <a href=''>Shutterstock</a>)
(Olivier Le Queinec via Shutterstock)

When asked to criticize a Roman tax, Jesus famously answered: “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.” Influenced by that teaching, James Madison wrote in the 1820s about the separation of church and state: “I have no doubt that every new example will succeed … in shewing that Religion & Govt. will both exist in greater purity, the less they are mixed together.” 

Such lessons are not always heeded.

Four times in the past year, the U.S. Court of Appeals for the Fifth Circuit has “mixed together”  religion and government by citing the Bible in court opinions (three of those citations by the same judge—Donald Trump appointee James C. Ho of Texas). Review of those citations provides a good reminder that Jesus and Madison had a point. The Federal Reporter should stay on a separate bookshelf from books of theology.

In State of Louisiana v. i3Verticals, decided in September 2023, a class of Louisiana sheriffs sued the sellers of allegedly defective software. The parties disputed whether the case belonged in state or federal court. 

The answer turned on a part of the Class Action Fairness Act that sends a class action to state court when (among other factors) there’s an in-state defendant “from whom significant relief is sought by members of the class.” The sheriffs sued an insolvent in-state defendant who had no real chance of ever paying a judgment. The issue was whether that defendant—facing a legally viable, but practically useless claim—was one “from whom significant relief is sought.”

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The panel majority opinion, written by Judge Ho, held that the accepted meaning of “to seek” meant “to ask for.” In addition to other authorities commonly cited in such cases (the Oxford English Dictionary, similar statutes, etc.), Ho quoted from the Bible, Matthew 7:7—“Ask, and it shall be given to you; seek, and ye shall find; knock, and it shall be opened unto you.” He then explained: “[A]lthough the Bible teaches that those who seek from the Lord shall find, when we seek something from our fellow man, we don’t always get it.” 

In  dissent, Trump appointee Andrew Oldham responded that “no one seeks without at least an infinitesimal hope of finding.” Among other counterarguments, he addressed the majority’s citation to Matthew 7:7 and observed: “The Bible says ‘seek, and ye shall find’ precisely because God gives us hope and faith—two things that plaintiffs do not have in ‘seeking’ to recover from a defunct shell company.” 

The third example comes from the Fifth Circuit’s 2023 en banc decision in Cargill v. Garland, which held that the ATF exceeded its statutory authority in regulating “bump stocks” that allow the rapid firing of a semiautomatic firearm. The case turned on grammatical issues about the controlling federal statute. 

In a concurrence, addressing one of those grammatical points, Judge Ho cited Psalm 111:10: “The fear of the Lord is the beginning of wisdom.” He noted that the phrase “‘the fear of the lord’ could refer to an anxious aristocrat, afraid of an overweening monarch or unruly populace,” but then observed: “[W]e know that the Bible means something very different—that the wise man fears God.”

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Then last week in the State of Texas v. SEC decision, which held that several states had not shown their standing to challenge a new SEC disclosure requirement,the majority opinion concluded that the states had no evidence that the new disclosures would lead to increased costs that might impact those states. 

Judge Ho concurred, noting that the states could refile if they presented stronger evidence of economic injury. He discussed the potential unintended consequences of the SEC’s new law, and in so doing, included an unexplained citation to Genesis 50:20. 

That verse is part of the story of Joseph, who was sold into slavery by his brothers but rose to become a wise ruler of Egypt who avoided a deadly famine. In that verse, Joseph tells his scheming brothers: “As for you, you meant evil against me, but God meant it for good, to bring it about that many people should be kept alive, as they are today.” The verse is generally read as illustrating the idea that divine plans are ultimately for good, even if individual events may seem harmful or unjust. 

Standing alone, none of these citations is particularly troubling. None are used as precedent. Each (except for the Genesis quote) is part of a broader discussion of a range of authority. And the Bible obviously has literary and cultural significance, separate and apart from its role as a religious text.

But the Bible’s a religious text. Three of these quotes were coupled with the pronouns “us” and “we.” Those are words of inclusion—Merriam-Webster, for example, reminds that “we” means “I and the rest of a group that includes me.” And as inclusive words, they imply a bond between author and some readers that plainly doesn’t include other ones. Because the original context for those words was the teaching of a specific religious faith—indeed, the Genesis citation is about faith itself—they inherently carry some endorsement of that tradition that risks sidelining readers of different or no faith.

The advice of Jesus and Madison continues to ring true. The English language offers a host of literary and cultural references that don’t come carrying religious baggage. A reminder: Federal court opinions should be written for all American citizens, not just those who sanctify a particular text.

By David Coale

David Coale is an appellate lawyer in Dallas, Texas, and publishes the popular 600Camp blog about the Fifth Circuit.

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Commentary Fifth Circuit Judge Ho Separation Of Church And State The Bible