Judge Fred Biery: A defender of human rights and secularism

Donald Trump's second term is a hurricane of authoritarianism, crashing against the crumbling walls of the American constitutional system.

He's proclaimed himself a king. He's turned ICE into his personal Sturmabteilung, snatching people off the streets, brutalizing and murdering American citizens. He's ordering employees of the executive branch to carry out flagrantly illegal orders and firing any who refuse. He's stacking the Department of Justice with lackeys and flunkies to carry out revenge prosecutions against political opponents. He's partially demolished the White House so he can rebuild it as a shrine to his own ego.

Throughout this chaos, Congress has been absent.

On paper, the legislature is the source of power, and the executive branch only a faithful interpreter of its will. The reality has been the opposite: Trump (and Republicans before him, going back at least to Richard Nixon) have acted as if the president is the supreme power in America, while Congress is a subservient bunch of courtiers.

Congressional Republicans are either too fearful to oppose Trump, or enthusiasically on board with his fascist tyranny. Meanwhile, with a few honorable exceptions, Congressional Democrats are somnolent. When they should be sounding the alarm the loudest, they're largely ineffective as an opposition. All they seem capable of is the cliched and much-mocked "strongly worded letter".

American democracy is guttering like a candle, but our flame isn't blown out yet. The one branch of government that still seems capable of exerting some checks and balances is the judiciary.

"A judicial finger in the constitutional dike"

To be sure, the right-wing Supreme Court has often bent over backwards to accommodate Trump's lawlessness.

To name one example, they protected him from prosecution in a ruling that will go down with Dred Scott as one of the worst decisions in American history. However, he hasn't had it all his own way, either. Most recently, the Supreme Court struck down his tariffs, prompting an epic tantrum from the dementia-addled dictator-wannabe.

While the Supreme Court has been unreliable at best, the lower courts have been a more consequential bulwark against Trump's brand of fascism. They've freed people arrested by ICE for no good reason. They've barred others from being deported without cause.

The remaining government attorneys, those who haven't resigned in protest, are being run ragged trying to defend these outrages in court. One lawyer begged the judge to jail her for contempt so she could take a break from her overwhelming workload. In another case, a judge did hold a DOJ lawyer in contempt after a man was released from ICE custody without his identifying documents, in defiance of a previous order.

The courts haven't prevented every evil. But they've thwarted some of the Trump administration's most egregious schemes, and slowed or hampered many others.

That brings us to Judge Fred Biery.

Judge Biery is a federal judge in the Western District of Texas. Appointed by President Bill Clinton, he's known for his witty, humorous opinions.

He was in the news recently for a case that shocks the conscience: masked ICE agents snatched Liam Conejo Ramos, a five-year-old boy, from the driveway of his own home. Ramos and his father were in the country legally seeking asylum.

According to school officials, ICE tried to use the preschooler as bait to lure other family members out of their house to be arrested along with him. When this failed, they whisked him away to one of their concentration camps.

In a federal habeas case, Judge Biery ordered the boy to be set free. His order minced no words:

The case has its genesis in the ill-conceived and incompetently-implemented government pursuit of daily deportation quotas, apparently even if it requires traumatizing children.

...Observing human behavior confirms that for some among us, the perfidious lust for unbridled power and the imposition of cruelty in its quest know no bounds and are bereft of human decency. And the rule of law be damned.

That thunderous denunciation would have been more than enough, but Judge Biery was also attentive to the larger implications of this case and others like it:

Apparent also is the government's ignorance of an American historical document called the Declaration of Independence. Thirty-three-year-old Thomas Jefferson enumerated grievances against a would-be authoritarian king over our nascent nation. Among others were:

1. "He has sent hither Swarms of Officers to harass our People."
2. "He has excited domestic Insurrection among us."
3. "For quartering large Bodies of Armed Troops among us."
4. "He has kept among us, in Times of Peace, Standing Armies without the consent of our Legislatures."

"We the people" are hearing echos of that history.

Judge Biery signed off with, "With a judicial finger in the constitutional dike, it is so ordered."

Another Judge Biery gem

If this opinion made you want to hear more eloquence from Judge Biery, you're in luck. Here's another noteworthy case that he was involved in: Schultz v. Medina Valley Independent School District.

In this 2011 case, two agnostic students filed a lawsuit against a Texas school district that put official prayers in its graduation ceremony, as well as other instances of school officials promoting Christianity and retaliating against anyone who objected.

After months of legal wrangling, the district and plaintiffs reached a strong settlement that upheld the separation of church and state. School officials agreed to stop proselytizing, displaying religious imagery, coercing students to pray, or sponsoring official prayers at graduation. Judge Biery signed off on the settlement.

Again, his decision could have ended there, but it didn't. He penned a sweeping appendix about separation of church and state in America, explaining not just the legal principles, but the history and philosophy that undergird them.

He surveyed the vast diversity of religious beliefs in the world and why they arose:

Not wanting their existence to end, Homo sapiens developed a multitude of theories and hopes, encompassed in thousands of religions, of how they can avoid simply returning to the Earth from whence they and other species came. Or, as the country western song says: "Everybody wanna go to heaven, but nobody wanna go now."

He provided an extensively footnoted set of descriptions of the warfare, persecution, and other holy horrors that result when one sect tries to force its specific beliefs on others:

While religious institutions bestow many blessings and try to alleviate suffering, those acts of Grace are ne[u]tralized by religious Homo sapiens who exhibit an historical and continuing pernicious and pervasive tendency to kill other humans and confiscate the property of those, sometimes even within the same religion, who do not believe as they do.

He reminded his audience that, with these conflicts in mind, the authors of the Constitution forged an eminently rational compromise. They made religion a private matter, where each person could make up their own minds about what to believe or not to believe, free of coercion from the state. He extensively quotes the founders to this effect, including James Madison, Thomas Jefferson, John Adams, Benjamin Franklin and Thomas Paine:

Some issues not foreseen by the leaders of an agrarian slave holding nation do not lend themselves to providing insight into the intent of those authors. Religion though and its relationship to government was one on which the Founders did speak clearly.

Having witnessed and learned from the bloodshed and persecution of European church-state partnerships the Founders wrote:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

Under secularism, America has flourished. Immigrants from across the world have come in search of religious liberty, and for the most part, they found it. We haven't had the religious wars and strife that so many other countries have suffered. Those who want state establishments of religion are blind to all the bloody history that always goes along with it.

Besides, even if we wanted to change our ways, which belief structure would be given preference? As Judge Biery rhetorically asks, posing a question that theocrats almost always skip over: "If government-run public schools also joined hands with religion and had the power to impose religious views, questions arise: Which holy books and prayers would be preferred? The Torah? The Book of Mormon? The Catholic Bible? The New Testament? The Bible as edited by Thomas Jefferson? The Koran?"

Remedial lessons in civics

You might say that the fact a federal judge even has to write these kinds of justifications of his verdicts is an indictment of our country. You might say that it shouldn't be a judge's job to give remedial lessons in civics and constitutional history. You might say it's a disgrace that we've come to this point at all. All this is hard to argue with.

But while we may dream about better worlds, we have to live in this one. As long as judges have to be the last line of defense of our secular country, we need good ones who uphold these principles and don't make exceptions. In a deep-red place like Texas, that's doubly important. And a judge who doesn't stick to barebones statements, but delivers his verdict in eloquent, colorful arguments that just might change a few minds - that judge is a hero of secularism and human rights whose service we should all be grateful for.