Federal appeals court finds no religious freedom constitutional violation
A three-judge panel of the U.S. 6th Circuit Court of Appeals, based in Cincinnati, ruled on April 26 that Ohio prison authorities did not violate the constitutional rights of a state prison chaplain when they fined him two days pay for defying an order to allow an openly gay prisoner to lead a musical group of inmates during prayer services.
The decision affirmed a ruling by the district court in a case coming out of Madison Correctional Institution, where William Akridge was briefly assigned in 2002 as the Protestant chaplain.
According to the circuit court opinion by Judge Thomas B. Russell, there was a small “praise band” led by an inmate that was performing at services when Akridge arrived on the scene. The head of that group informed Akridge that a prisoner named Reed had organized a new group and wanted to perform at services.
Akridge summoned Reed and told him that the group had to request his permission before it could perform. Akridge expressed concern that a new group might try to play “pagan music.” The inmate accused Akridge of being biased against him because Reed was gay. Akridge disclaimed any prior knowledge about Reed’s sexuality, but then said, egregiously, that his being gay was itself good reason to bar him from performing.
Reed complained about anti-gay discrimination to prison authorities, who investigated and then came down on Akridge. Bobby Bogan, Akridge’s immediate superior, ordered the chaplain to let Reed be one of the “choir directors,” but Akridge, standing on his religious principles, refused. So the prison imposed a two-day fine on Akridge, who asked for a transfer to another assignment.
Akridge then got the Alliance Defense Fund—ardent champions of homophobes and the right-wing “politically-incorrect”—to jump right in to make the matter a federal case, claiming due process and First Amendment violations. Their main argument was that as a chaplain Akridge had a protected First Amendment right to refuse to allow an openly-gay man to play a leadership role in a religious service because this was contrary to his religious beliefs. Also, because gay rights was a contentious subject of public debate, Akridge was privileged to take a position about it without suffering adverse employment consequences, the lawsuit argued.
The district court ruled against Akridge on all grounds, and found that the prison officials enjoyed sufficient immunity from liability in the case because there is no clearly established federal right for prison chaplains to discriminate against inmates. The court of appeals unanimously affirmed.
While acknowledging that public employee speech about homosexuality may enjoy some First Amendment protection since the topic is of public interest, Judge Russell found that all the speech in this case had internal, job-related content and thus was not entitled to special constitutional protection. Cases protecting public employees from discipline based on their speech are normally concerned with speech unrelated to the job on matters of public debate, not speech entirely within the workplace relating to the performance of job duties.
But even if Akridge’s speech did fall within the sphere of possible constitutional protection, the court pointed out, Akridge was not disciplined for speaking, but rather for refusing a direct order from his superior, which is insubordination. The court did not judge the prison’s non-discrimination policies—including one banning sexual orientation discrimination against prisoners—as too vague to meet due process standards. Russell’s opinion also agreed with the trial court that the prison officials enjoyed qualified immunity against the claims in this case in any event, since Akridge could not point to a clearly established doctrine saying he had the right to defy orders not to discriminate.
One suspects that the Alliance Defense Fund may try to bring this one further, but it is unlikely to tempt the U.S. Supreme Court to get involved.