A 7.5-year-old lawsuit that began when the Denver Sheriff Department’s chaplain denied a kosher diet to a detainee has ended on Monday, after the federal appeals court based in Colorado ruled that the chaplain deserved immunity for any infringement on the man’s free exercise of his religion.

The decision from the U.S. Court of Appeals from the 10th Circuit is the third religious freedom ruling arising from Colorado in two weeks. The constitutional claim of Craig C. Ralston boiled down to a single footnote in a previous 10th Circuit decision that drastically altered the trajectory of his case.

“The famous footnote 3!” observed Judge Jerome A. Holmes during the oral argument in Ralston’s case.

Ralston was arrested and booked into the Denver Detention Center in December 2013. He indicated he did not need a special religious diet, but subsequently filed a grievance saying he required kosher meals. The chaplain, Hosea Cannon Jr., was responsible for coordinating detainees’ diet requests and he denied Ralston’s on Jan. 2, 2014.

Ralston, who believes in Messianic Judaism, filed another request as well as a federal complaint against Cannon alleging the denial of a kosher diet amounted to religious discrimination and a burden on the free exercise of his religion. (Messianic Judaism grew out of evangelical Christianity, and the San Francisco-based Jews for Jesus is one of its ministries.) On Feb. 4, Cannon approved the diet request.

At issue in the lawsuit was whether Cannon would receive qualified immunity, which is a judicial doctrine shielding government employees from liability unless they violate a clearly-established legal right. Generally, a right is clearly established when a prior court decision, under a similar set of circumstances, says it is.

Accordingly, a three-judge panel of the 10th Circuit decided Cannon was indeed immune, given that no court decision had labeled similar conduct from a jail chaplain unconstitutional.

“[T]he law was not clearly established that Mr. Cannon could be found liable for a free-exercise violation for denying Mr. Ralston a kosher diet – absent a showing that Mr. Cannon took this action for the purpose of discriminating on account of Mr. Ralston’s religion (i.e., because of his religion),” Holmes wrote in the panel’s Aug. 9 order.

Arriving at that decision, however, involved a messy detour through First Amendment case law.

Initially after Ralston filed his lawsuit, a federal magistrate judge found Cannon’s denial of Ralston’s request to be “more than an isolated act of negligence.” Because the deprivation of kosher meals lasted for a month, despite Ralston’s repeated communications with the chaplain, the magistrate judge refused to grant qualified immunity to Cannon.

Cannon appealed to the 10th Circuit, where a different three-judge panel found it could not decide the appeal in March 2018. But in a footnote that spanned three pages, the panel suggested that Cannon was relying on the wrong case to argue his point.

Cannon had cited a 2009 decision from the 10th Circuit, Gallagher v. Shelton, which found there must be “conscious or intentional interference” with an inmate’s right to the free exercise of his religion. However, shortly before Gallagher, the U.S. Supreme Court decided the case of Ashcroft v. Iqbal, finding that a First Amendment violation must show that a party acted “with discriminatory purpose” – a higher burden of proof than simply being conscious.

The 10th Circuit panel, in making its observation, indicated it was a lower court’s job to clear up the discrepancy between the two decisions. That footnote triggered a reversal in Ralston’s fortunes: in March 2019, another magistrate judge, S. Kato Crews, ruled that Ralston needed to show purposeful discrimination. Calling Gallagher and cases like it “anomalies,” Crews granted Cannon qualified immunity and dismissed the case.

This time, it was Ralston who appealed to the 10th Circuit. He argued to the court that Iqbal involved a claim of religious-based discrimination. But the first magistrate judge had already dismissed Ralston’s discrimination claim, meaning his lawsuit now focused on something different – his free exercise of religion claim.

The Lawyers’ Civil Rights Coalition, a group of Colorado constitutional lawyers, supported Ralston’s assertion that the Iqbal decision simply did not apply to this type of lawsuit.

“A plaintiff alleging violations of his or her First Amendment Free Exercise rights is not required to show that a state actor purposefully discriminated against him or her based on religion,” the coalition wrote in a brief to the 10th Circuit.

During the second appeal, David Cooperstein with the Denver City Attorney’s Office argued Cannon could not be liable based on Ralston’s initial questionnaire that indicated no need for a special diet, and because of the advice the chaplain received from a “Messianic Jewish consultant” that the jail’s food met the requirements of Ralston’s faith.

“When Chaplain Cannon denied the kosher diet request, he had no reasonable way of knowing that decision could rise to a First Amendment violation,” Cooperstein said.

Holmes, in the panel’s decision, agreed.

“Mr. Ralston does not argue – much less identify evidence showing – Mr. Cannon acted with a discriminatory purpose. Therefore, Mr. Ralston cannot carry his burden of establishing that Mr. Cannon’s conduct violated clearly established law,” Holmes wrote.

But the appellate judges’ ruling may have created even more confusion for First Amendment claims. Despite the footnote that prompted Ralston’s appeal, the panel declined to weigh in on the footnote’s central question: whether the Gallagher decision was, as Crews asserted, an “anomaly.” Moreover, the decision was unpublished, meaning it is not intended to set legal precedent.

“What the lower court said is now irrelevant,” said Ian Smith, staff attorney at Americans United for Separation of Church and State. “The only thing that matters is what the 10th Circuit said here, which is that the law was unclear and the defendant has immunity from suit because of that. The court did not hold anything about how to resolve the potential ambiguity in the law.”

The decision in Ralston’s case comes on the heels of two other 10th Circuit rulings related to religious freedom. On July 26, a panel decided 2-1 that the Colorado Anti-Discrimination Act could compel a web designer to create wedding websites for same-sex couples, even though it violated her religious beliefs.

Then on Friday, the 10th Circuit reinstated the lawsuit of an atheist who alleged his parole officer in Fort Collins violated his First Amendment rights by forcing him to choose between participating in a Christian transition program or going to jail.

The case is Ralston v. Cannon.