In Janny v. Gamez, (10th Cir., Aug. 6, 2021), 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 growing out of a requirement that in order to stay out of jail he stay at a Christian homeless shelter and participate in its religious programming. The court said in part:
[W]hile the Lemon test remains a central framework for Establishment Clause challenges, it is certainly not the exclusive one…. And claims of religious coercion, like the one presented here, are among those that Lemon is ill suited to resolve. Lee [v. Weisman] teaches that a simpler, common-sense test should apply to such allegations: whether the government “coerce[d] anyone to support or participate in religion or its exercise.” …
Mr. Janny argues that Officer Gamez’s written parole directive to abide by the Mission’s “house rules as established,”… shows the State required him to participate in the Mission’s religious programming…. These facts establish a genuine dispute as to whether the State, through Officer Gamez, acted not just to place Mr. Janny in the Mission, but to place him specifically into the Christian-based Program….
The record [also] 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.
The court also rejected defendants’ qualified immunity defenses.
Judge Carson dissented in part, contending that the director of the Mission should not be liable as a state actor.
ACLU issued a press release announcing the decision.