Mere Dicta

Consider this settlement approval opinion by Fred Biery, Chief of the United States District Court for the Western District of Texas. (Via.) Judge Biery presided over the case of Schultz v. Medina Valley Independent School District, an Establishment Clause challenge to a public school district’s prayer policy. The parties reached a settlement and the settlement was approved.

This case has been used as a political whipping boy across Texas and across the Republican Presidential primary, most notably by Newt Gingrich, who called Judge Biery out by name as a candidate for impeachment or legislative downsizing. This was after Judge Biery granted a preliminary injunction finding that the school’s inclusion of a prayer on the program of its graduation ceremony violated a page-long string-cite of well-established legal precedent. Apparently, though, having his job threatened was not the worst that Judge Biery had to endure at the hands of a semi-educated public and politicians who ostensibly should have known better.

The order approving the ultimate settlement between the parties includes this rather remarkable two-liner:

What This Case Has Not Been About

The right to pray.

Any American can pray, silently or verbally, seven days a week, twenty four hours a day, in private as Jesus taught or in large public events as Mohammed instructed.

This, by the way, is the entirety of that section of the opinion. And it’s rather obvious. But I guess some people got confused about that. Judge Biery goes on to approve the settlement as in congruence with the Constitution, and below his signature adds “A Personal Statement”, which is the part that made me arch my eyebrows.

During the course of this litigation, many have played a part:

To the United States Marshal Service and local police who have provided heightened security: Thank you.

To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination: In His name, I forgive you.

To those who have prayed for my death: Your prayers will someday be answered, as inevitably trumps probability.

To those in executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves.

To the lawyers who have advocated professionally and respectfully for their clients respective positions: Bless you.

As this comes after the the order approving and entering the settlement as the final judgment in the case, it is what law school professors call “dicta.” It is of no immediate legal effect. Indeed, it is a political statement rather than a legal one.

The most rabid critics of Judge Biery, the ones who do not know when to apply the brakes or turn down the volume on their diatribe-generators, will call this “personal statement” out as a deviation from appropriate judicial demeanor. If your life and that of the people who worked to support your work was threatened, because you had done something you really had no choice but to do, you might be a little upset about that, too.

But for those of us who stand back, astonished at the venom unleashed on the independent judiciary who serve quietly as the sentinels of the rule of law, ordered liberty, and the peaceful resolution of disputes, this “dicta” is incredibly cool and it’s hard for me to say whether “You should be ashamed of yourselves” or “Your prayers will someday be answered, as inevitably trumps probability” is the better turn of phrase. So I’ll content myself at saying, “Good on, Your Honor.”