Appeals Court: Parole Officers Can't Force Parolees To Accept Jesus Christ As Personal Savior
In America, we have freedom of religion — which means people are allowed to practice whatever religion they want, or no religion at all. It's in the Constitution. Some people, naturally, are confused about this, and instead believe they have the freedom to require others to practice their religion. This has caused a great many problems in our great nation over the years.
One such person is Colorado Department of Corrections Parole Officer John Gamez, who regularly required his parolees to live at a Christian homeless shelter he had an informal arrangement with, which forced them to practice Christianity whether they believed in it or not. On Friday, the US Appeals Court for the Tenth Circuit granted one of Gamez's parolees, Mark Janny, permission to sue him for it, finding that Americans have "the basic right to be free from state-sponsored religious coercion."
Janny was represented in court by the ACLU and Americans United For Separation of Church and State, both of which issued statements after the fact:
Alex J. Luchenitser, associate vice president and associate legal director at Americans United: "This is a victory for Mark and for religious freedom. Our country's fundamental principle of church-state separation guarantees that everyone has the right to believe, or not, as they choose. That means that our government must never force anyone to practice a faith that is not their own, and of course must never jail anyone for refusing to submit to religious proselytization."
Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief: "The government presented Mr. Janny with a blatantly unconstitutional choice: Go to church, or go to jail. As the court's decision makes clear, the First Amendment flatly prohibits such religious coercion, and state officials should know better."
Janny was let out of prison in 2015, with 24 months of parole. As a condition of his parole, Officer Gamez required him to move into the Fort Collins Rescue Mission, a Christian homeless shelter, and participate in their Steps to Success program, wherein he would be exposed "to the good news of Jesus Christ in a supportive community." Janny was told he would be required to pray, to participate in Bible studie,s and to engage in other forms of Christian worship. He was not too happy about that, as he was and is an atheist.
The appeals court's ruling explained the program:
Steps to Success "is a 3 to 10 month transitional, Christian-based program that provides men and women help to become productive, self-sufficient citizens," and that "exposes [participants] to the good news of Jesus Christ in a supportive community." It combines spirituality—including bible study and Christian worship—with life-skills workshops, "work therapy," and case management. Participants are required to attend a daily morning prayer service and a daily 5:00 p.m. service in the Mission's chapel, in addition to an outside church service each Sunday and several sessions of evening bible study per month. They are also required to observe dorm-style rules, including set mealtimes and curfew, and to refrain from drugs or alcohol. Among the express objectives of Steps to Success is for its participants to achieve "Full program compliance."
In addition to requiring Janny to do all that, the program's directors told him he wasn't allowed to tell anyone he was an atheist and repeatedly tried to convert him.
Mr. Janny was forced to attend two Christian bible studies at the Mission led by Mr. [Tom] Konstanty. On February 5 or 6, Mr. [Jim] Carmack summoned Mr. Janny to his office for religious counseling. Mr. Janny made it clear he did not want to talk about religion, yet Mr. Carmack proceeded to discuss theological theories of existence and the history of the Bible. Mr. Carmack also challenged Mr. Janny's beliefs, attempting to convert him to Christianity by means of Pascal's Wager.
Janny told Gamez he had people he could stay with, but was told he had to stay at the shelter. He then asked if he could stay, but not participate in the Bible studies and the prayer sessions or go to church, but was told repeatedly by Officer Gamez and Jim Carmack, the mission's director, that it was either do that or go back to prison. When Janny skipped out on worship services, he was kicked out of the shelter. Since not living in the shelter was a violation of his parole, Janny was sent back to prison for five months.
In 2016, Janny brought a lawsuit against Gamez, Carmack, Konstanty and Gamez's supervisor, Lorraine Diaz de Leon, representing himself in the proceedings, which is never a good idea. The federal district court dismissed his case, saying he failed to make the case that forcing him to pray or go to prison was a violation of the Establishment Clause.
To analyze the Establishment Clause claim, the district court applied the three-part test from Lemon v. Kurtzman, 403 U.S. 602 (1971). It found that Mr. Janny had not shown his placement in the Program lacked a secular purpose or that its principal effect was to advance religion, and that Mr. Janny had also failed to bring forth a genuine issue as to any government entanglement with religion. It accordingly held Mr. Janny had failed to adduce evidence sufficient to show Officer Gamez violated the Establishment Clause. The district court then decided Mr. Janny's Free Exercise Clause claim on the second prong of qualified immunity, finding Officer Gamez had not violated clearly established law.
The Lemon test, however — as the 10th Circuit Court of Appeals noted in its order — is not applicable in every situation in which the Establishment Clause is violated, particularly in cases involving religious coercion. Thus, the appeals court reversed the lower court's decision and gave Janny permission to sue Gamez and Carmack. (They held that there wasn't sufficient proof that Konstanty was acting on behalf of the state.)
While this doesn't necessarily mean Janny will win his lawsuit, it's a step in the right direction. Of course, the notion that any court wouldn't consider forcing a parolee to practice Christianity or go back to prison to be the world's most obvious violation of the Establishment Clause is really not great.
Probation and parole are supposed to provide alternatives to incarceration, but the reality is quite different. In 2019, 45 percent of prison admissions were people who violated parole or probation conditions. The vast majority of these were not new criminal charges, but rather technical offenses like screwing up paperwork, missing appointments or drug tests, or cleaning one's bathroom while wearing a SCRAM bracelet. Or, as it turns out, not converting to Christianity.
While the answer isn't horrific Truth In Sentencing laws -- so popular with the "tough on crime" crowd! -- having people live in constant fear of being sent back to prison for something stupid isn't the best plan either. It's also very expensive, as imprisoning people for technical supervision violations costs us $2.8 billion a year.
Surely, there must be a better way.
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Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse