Cert. Filed In Suit By Parolee Against Christian Homeless Shelter Director

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Carmack v. Janny, (cert. filed 12/3/2021). In the case, the U.S. 10th Circuit Court of Appeals held that a parolee, who is an atheist, should be able to move ahead with his Free Exercise and Establishment Clause claims against his parole officer and the director of a Christian homeless shelter. To stay out of jail, plaintiff was required to stay at the shelter and participate in its religious programming. (See prior posting.) The petition for review frames the question presented as:

Whether the employee of a private, religious nonprofit may be held liable, as a state actor, for making pro bono housing and social services at the nonprofit’s facility contingent on participation in religious programming.

ADF issued a press release discussing the case.

Ban On Sex Offender Attending Church Services Is Upheld

In State of Washington v. Duschene, (WA App., June 8, 2020), a Washington state appellate court upheld the sentence and community custody provisions imposed on a convicted sex offender.  Among other things, defendant argued that the condition that prohibits him from entering areas where children's activities regularly occur violates his 1st Amendment free exercise rights because this prohibits him from attending church services.  The court disagreed, saying in part:

A burden on the exercise of religion ... must withstand strict scrutiny.... Once the complaining party establishes a coercive effect, the burden of proof shifts to the government to show the restrictions serve a compelling state interest and are the least restrictive means for achieving that interest....

The record shows that DuSchene has regularly attended church in the past, and that he considers himself a Christian. But he does not argue that he sincerely holds his religious convictions, that those convictions are central to the practice of his religion, or that the challenged enactment burdens the free exercise of his religion. Thus, he has not established that the condition has a coercive effect, and his challenge on this ground fails.

No 1st Amendment Violation In Requiring Parolee To Live At Christian Homeless Shelter

In Janny v. Gamez, (D CO, Feb. 21, 2020), a Colorado federal district court dismissed an inmate's First Amendment challenge to his arrest for parole violations. Mark Janny's parole officer directed him to stay at a Christian homeless shelter in order to meet the parole requirement that he establish a residence of record. Janny was expelled from the shelter's program when he refused to attend chapel religious services. The court held that plaintiff's Establishment Clause rights were not infringed because there was a secular purpose for the homeless shelter requirement. The court also accepted defendant's qualified immunity defense to an assertion of free exercise violations, saying that it was not clearly established that a parole officer violates a parolee’s rights by requiring him to reside at a facility that provides religious programming.

Parole Condition Barring Church Attendance Is Enjoined

In Manning v. Powers, 2017 U.S. Dist. LEXIS 213749 (CD CA, Dec. 13, 2017), a California federal district court granted a preliminary injunction banning the government from enforcing two parole conditions imposed on Sherman Manning, a Baptist minister who had served 25 years in prison for sexual assaults on teenage boys.  One of the challenged conditions prohibited Manning from entering places where children congregate.  Authorities had interpreted that to prohibit him from entering any church.  In invalidating that broad prohibition, the court said in part:

To withstand constitutional scrutiny, a prohibition that is not neutral or generally applicable must advance "only those interests of the highest order," and be narrowly tailored to serve those state interests.... That criteria is not met here. Although public safety is a compelling state interest, the court finds that a blanket restriction on Manning's churchgoing is not narrowly tailored to suit this interest. None of Manning's convictions have any connection to churches or religious activity.... Additionally, the alleged prohibition is overbroad in that it may reach even church events at which no children, or very few children, are ever present. Therefore, the court concludes that an interpretation of SCP 18 that imposes a blanket prohibition on churchgoing is likely to result in a violation of the Free Exercise Clause.

Limit On Parolee's Ability To Attend Church Is Too Broad

In United States v. Hernandez, (ED NY, Sept. 20, 2016), a New York federal district court held unconstitutional a condition of supervised release limiting church attendance that was imposed on defendant after he completed 4 years in prison for receiving child pornography.  Defendant, a 38-year old man, was not permitted to attend church services where minors are present. The court said that this totally prevents him from attending the church of his choice with his father. The court concluded:

Defendant has a right to attend church services. Preventing him from going to his place of worship because the services are also attended by minors unnecessarily burdens that right. It is reasonable to apply a condition that defendant not physically touch minors while attending church services, unless doing so is a part of his religious obligation.... This condition is narrowly tailored. It strikes the necessary balance of allowing defendant to exercise his freedom to associate and participate in religious services, while protecting minors.