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A Fort Collins parole officer and the operator of a Christian transitional program violated a man’s First Amendment rights if, in fact, they forced him to either participate in religious programming or go to jail, the federal appeals court in Denver decided on Friday.

The U.S. Court of Appeals for the 10th Circuit reinstated the lawsuit of Mark Janny, an atheist, who ultimately was subjected to 150 days in custody because he refused to attend morning prayer and Bible studies at Fort Collins Rescue Mission, where his parole officer had directed him to live.

It was well established, Judge Carolyn B. McHugh wrote in the court’s August 6 opinion, “that a state actor violates the Free Exercise Clause by coercing or compelling participation in religious activity against one’s expressly stated beliefs.”

Janny argued to the 10th Circuit that even though the state of Colorado did not create the content of the rescue mission’s programming, the actions of parole officer John Gamez amounted to the government coercing Janny into religious participation.

“There is no question that the government may not force a choice between going to church or going to jail. That’s what happened here," attorney Charles B. Wayne told the three-judge appellate panel during oral arguments. “The state knew of the content of the program and required, in this case, the parolee to participate.”

The decision comes one week after a separate 10th Circuit panel issued another major religious freedom decision. In 303 Creative v. Elenis, a 2-1 ruling affirmed that Colorado’s anti-discrimination law compelled a Christian graphic designer to create wedding websites for same-sex couples, in contravention of her religious beliefs.

On Friday, Alex J. Luchenitser, the associate vice president and legal director for Americans United for Separation of Church and State, believed the two rulings complemented each other.

“At a time when many religious extremists are trying to wrongly use religious freedom as a sword that harms others, the two recent decisions in Janny and 303 Creative show that the 10th Circuit understands the concept of religious freedom properly,” he said. “Religious freedom protects you from government pressure to participate or believe in any religion. Religious freedom does not give anyone the right to ignore civil rights laws that guarantee equality for all.”

Americans United represented Janny on appeal.

According to Janny, he was released on parole on Feb. 2, 2015, and Gamez directed him to reside at the rescue mission and abide by its “house rules." (The Fort Collins site is one of the locations of the Denver Rescue Mission.) Initially, Janny proposed to live with a friend, but Gamez vetoed the idea, reportedly out of belief that the friend was involved with illegal drugs.

The parole officer explained to Janny that he was friends with the rescue mission’s director, Jim Carmack. Carmack was willing to take on Janny as a “guinea pig” to be the first male parolee at the rescue mission, as a favor to Gamez.

The mission, whose motto is “Changing lives in the name of Christ," required participants to attend and participate in prayers, Bible study and one-on-one religious counseling. In a meeting with Carmack when he arrived at the rescue mission, Janny expressed his belief that the “house rules” were a violation of his religious rights. Carmack reportedly told Janny he would comply with the program or go to jail.

“That’s not how the United States works,” Janny protested.

Janny, Carmack and Gamez subsequently met at Gamez’s office, where Gamez allegedly reiterated the directive to Janny. Carmack then requested that Janny’s curfew as reflected in his electronic monitoring device be moved earlier so Janny could attend daily chapel service.

Over the next several days, Janny repeatedly objected to the compulsory religious programming. The assistant director reportedly asked Janny if the rescue mission was “growing on him,” to which Janny retorted he was “as much a prisoner here as ever.”

After Janny skipped multiple religious services, Carmack told him he could not be at the rescue mission anymore. Janny allegedly departed the mission and stayed at a friend’s house. His electronic monitor registered the movement, and Gamez requested an arrest warrant.

Janny reportedly tried to look for an alternative treatment center the next day, but when he was unsuccessful he reported to his parole office. He was arrested and his parole was revoked for 150 days.

The Establishment Clause of the First Amendment prohibits the government from forcing a person to go to or abstain from religious services, and the Free Exercise Clause guarantees a person's right to adhere to their chosen religious beliefs. The 10th Circuit panel observed that prior courts have deemed it unconstitutional to require a prisoner, parolee or probationer to attend religious programming.

For example, the New York-based Second Circuit ruled in 1996 that a man on probation was coerced into participating in Alcoholics Anonymous meetings, where participants were told to "pray to God for help in overcoming their affliction." Like Janny, the government gave no alternatives for treatment.

Therefore, Gamez was on notice that his alleged directive violated the First Amendment.

"The record allows Mr. Janny to reach the jury on his claim that Officer Gamez burdened his right to free exercise by allegedly presenting him with the coercive choice of obeying the Program’s religious rules or returning to jail," wrote McHugh. She added that it was the government's responsibility to find a program that did not force Janny to choose between confinement and abandoning his beliefs as an atheist.

More than a dozen faith-based organizations weighed in to the 10th Circuit on behalf of Janny. Those groups — including the Central Conference of American Rabbis, Sikh American Legal Defense Fund and the Hindu American Foundation — contended that if Janny were barred from bringing a First Amendment claim, it "opens the door to visit further harm on parolees, particularly religious minorities."

The 10th Circuit's decision reversed a lower court judge, who sided with Gamez and Carmack last year. U.S. District Court Judge Raymond P. Moore found that Gamez was entitled to qualified immunity, a judicial doctrine that shields government employees from liability unless they violate a clearly-established right. Moore also determined Carmack and the rescue mission's assistant director were not acting in coordination with the state and could not be sued for a First Amendment violation.

However, the 10th Circuit panel was divided on the question of whether Janny's claims against Carmack, like those against Gamez, could continue to trial. McHugh, an Obama administration nominee, and Senior Judge Carlos F. Lucero, a Clinton administration nominee, decided the answer was yes.

Both Gamez and Carmack allegedly pursued a "common unconstitutional goal" of coercing Janny into participating in the program. As Janny described, Carmack reportedly asked Gamez to change Janny's curfew time so he could participate in evening worship.

But Judge Joel M. Carson III, a nominee of the Trump administration, disagreed that Carmack was liable. Carmack, in his view, lacked the authority to send Janny to jail, meaning he was dependent on the parole officer to discipline Janny.

"I do not believe that Mr. Carmack’s willingness to take in one parolee and his expectation that the parolee abide by house rules so long as he remained living at the Mission, transformed him into a state actor," wrote Carson in a dissenting opinion.

McHugh countered that a jury could find coordination occurred between Carmack and Gamez, culminating in a First Amendment violation. The panel ordered a trial on Janny's constitutional claims.

The case is Janny v. Gamez et al.

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