As I travel the nation, I am often asked whether President Trump's judicial nominees are as helpful to our republic as many claim they are. My answer is an unequivocal "Yes!" I believe our Constitution and its unique ideas has made America a special place, and I can say that in my lifetime, no president has appointed more judges not only knowledgeable of the Constitution but also dedicated to preserving its core principles.
A shining example of this is Judge James C. Ho, appointed by President Trump to the U.S. Court of Appeals for the 5th Circuit. Judge Ho is extremely busy (some 7,500 cases are filed with the 5th Circuit each year – or nearly 30 cases every workday), but it seems that when writing an opinion, he never misses the opportunity to defend and educate about the scope of protections in the Constitution. A recent example is the decision in Horvath v. City of Leander, a case few heard anything about, but which addressed important constitutional issues.
It involved a fireman who was terminated for "insubordination" for refusing, on religious grounds, to receive a "required" vaccine or accept what he believed to be an insufficient accommodation of his religious beliefs offered by the department. The fire department had offered allowances, but he refused them. A majority of the court, including Judge Ho, upheld the fireman's termination, believing that the department had indeed made reasonable attempts to accommodate his beliefs. But Judge Ho did not stop with that ruling; he went further and authored a very helpful separate opinion that clarified several important points.
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When the lower district court originally ruled against the fireman, it cited a 1980 Supreme Court case (Employment Division v. Smith). That case had amazingly ruled that despite the explicit language of the First Amendment in the Constitution that says otherwise, the government had the right to regulate an individual's religious expressions. (This case has been heavily criticized over the years, and many current Supreme Court justices want to dismantle that ruling and issue a new one returning to the actual wording of the Constitution, which explicitly guarantees protection for religious expressions.)
Judge Ho was troubled by the district court's reliance on Smith when ruling on the Horvath case, noting that "we should not apply it where it does not belong." He then reviewed the disturbing trend in recent years of reducing the First Amendment's required protection for the "free exercise of religion" to nothing more than protection for one's "worship." As Judge Ho correctly points out, there is a vast different between "worship" (which suggests only ceremonial and sacramental observances, generally in private settings) and "free exercise" (which includes both action and application in public).
Ho affirmed that the founders intended the First Amendment to "extend beyond mere ritual and private belief to cover any action motivated by faith." He rightly concluded that "when government regulation and religious activity conflict, the right to free exercise would require that the government accommodate the religious practices, rather than the reverse." In short, if there is a conflict, the government must back down, not religious expression.
Many judges today invoke what is called "qualified immunity," meaning that when a government official is accused of violating someone's constitutional right of religious freedom, that official must be protected and not held individually responsible. But as Judge Ho reminds us, the Constitution was written to restrain government, not empower it, so we ought to be "concerned about government chilling the citizens, not the other way around."
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Some today actively try to rewrite the founders' clear choice of words for the freedoms the Constitution seeks to protect, but not Judge Ho. He understands that both the explicit language as well as the historical background of the First Amendment is to provide maximum protection for our first freedom: religious freedom. Judge Jim Ho is representative of the scores of Constitution-minded originalist judges President Trump is nominating to the bench.