Tenth Circuit Says Parolee May Not be Forced to Participate in Religious Program Under Threat of Jail
by David M. Reutter
In a lawsuit alleging prison officials used coercion to force an atheist parolee into participating in Christian programming, the U.S. Court of Appeals for the Tenth Circuit came down on the parolee’s side on August 6, 2021, reversing a lower court’s grant of summary judgment to Defendants.
The Court’s opinion was issued in an appeal filed by Mark Janny, who was placed on 24 months parole with the Colorado Department of Corrections (DOC) in early December 2014. He was arrested later that month for violating curfew and failing to report for a required parole appointment. He was released in early January 2015, but he was again arrested for parole violation. That violation complaint was dismissed, and Janny was released on the night of February 2, 2015.
He spent the night with a friend and reported to his parole officer, John Gamez, the next morning. Gamez denied Janny’s request to establish his “residence of record” with his friend because Gamez believed the friend was involved in illegal drug use.
The conditions of Janny’s parole required him to follow the written directives of his parole officer, and Gamez issued a written directive requiring Janny to establish Fort Collins Rescue Mission as his residence of record “and abide by all house rules as established.”
The Mission’s motto is “changing lives in the name of Jesus Christ.” Its house rules require participation in “Steps to Success,” a 3-to-10-month Christian-based transitional program. Participants must daily attend prayer in the morning and a service in the Mission chapel at 5 p.m. They must also attend an outside Sunday worship service.
Janny objected on grounds that he is an atheist. He was informed by Gamez and the Mission’s director, Jim Carmack, that he could either comply with the rules or go back to jail. After failing to comply on several occasions, Janny was terminated from the program and ordered by Carmack to leave.
Gamez then reported Janny as an absconder who left the program “without authorization from staff.” He issued a warrant for the parolee’s arrest, and the Parole Board on March 10, 2015, found Janny violated his parole by failing to remain overnight at his residence of record. It revoked his parole and remanded him to a Community Return to Custody Facility for 150 days.
Janny filed suit pro se in U.S. District Court for the District of Colorado, alleging a violation of his First Amendment religious freedom rights under the Establishment and Free Exercise Clauses. When the district court granted the Defendants’ motions for summary judgment, Janny appealed, this time represented by attorney Charles B. Wayne, DLA Piper LLP, with assistance from attorneys Richard B. Katskee and Alexander J. Luchenitser of Americans United for Separation of Church and State as well as Daniel Mach and Heather L. Weaver of the American Civil Liberties Union Program on Freedom of Religion and Belief, all based in Washington, DC.
Appeal to Tenth Circuit
Taking up the case, the Tenth Circuit rejected the Defendants’ argument that Janny presented only “self-serving” sworn statements as evidence. “The self-serving nature of a sworn statement bears on its creditabilty, not on its cognizability for purposes of establishing a genuine issue of material fact,” wrote the Court. “To reject testimony because it is unsubstantiated and self-serving is to weigh the strength of the evidence or make creditability determinations—tasks belonging to the trier of fact.” Janny, the Court said, had submitted sufficient statements and documentary evidence to create a genuine issue of material fact.
Turning to the Establishment and Free Exercise Clause claims, the Court found Gamez acted as an agent of the state, his action was coercive, and the object of his coercion was religious. It noted that Janny protested that religion was being forced upon him by being required to stay at the Mission. Gamez had a duty to find alternative housing for Janny rather than force a religious program upon him. Carmack was found to have acted under the color of law because he was a joint actor with Gamez.
The Court further found it was clearly established that Janny could not be forced to participate in a religious program under threat of jail. Thus, the district court’s order was reversed as to Gamez and Carmack. The Court affirmed judgment for Gamez’ supervisor and an associate director of the mission because they were not connected to the violation of Janny’s rights.
While concurring with the majority of the Court that Gamez violated Janny’s rights, Judge Joel M. Carson III dissented from extending the same finding to Carmack, who should not “be liable as a state actor for making housing at the nonprofit’s facility contingent on participation in religious programing.”
Submitting amicus curiae briefs in the case were Muslim Advocates, the Central Conference Of American Rabbis, Disciples Of Christ, Global Justice Institute, Hindu American Foundation, Interfaith Alliance Foundation, Men Of Reform Judaism, National Council Of Churches, Reconstructing Judaism, Reconstructionist Rabbinical Association, Samuel Dewitt Proctor Conference, Sikh American Legal Defense Fund, Union Of Reform Judaism, Unitarian Universalist Association, Women Of Reform Judaism and Wyoming Interfaith Network. See: Janny v. Gamez, 8 F.4th 883 (10th Cir. 2021).
Defendants filed for a writ of certiorari with the U.S. Supreme Court to hear the case on appeal, and that petition was dismissed on January 26, 2022. See: Carmack v. Janny, 142 S. Ct. 878 (2022).
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