Mormons, Free Exercise, and Unrighteous Litigation

October 7, 2009
By

John Boyle was offended that his country club scheduled golf tournaments on Sunday. He was a Mormon who kept the Sabbath day holy. So he sued. Boyle v. Jerome Country Club, 883 F Supp 1422 (D.Id. 1995)

Christina Axson-Flynn was studying acting at the University of Utah. A Mormon, she was uncomfortable that the school’s acting exercises required her characters to utter some dirty words. So she sued. Axson-Flynn v. Johnson, 151 F Supp 2d 1326 (D. Utah 2001).

Boyle and Axson-Flynn both claimed that their First Amendment rights were violated. That part of the Constitution, in addition to forbidding the government from establishing religions, prohibits it from interfering with the free exercise thereof.

Mormons are taught to be in the world but not of the world. Sometimes, this requires them to take stands. Were these two free exercise lawsuits part of that proud tradition?

I have my doubts. I am generally uncomfortable when taking stands means hiring plaintiff’s lawyers to stop people from doing what they want to do, rather than just walking away, especially when there is no harm beyond elective activities. Why? In addition to clogging up the legal system, lawsuits like this create “externalities.” That’s a fancy economic term for “unintended consequences.”

Want more facts?

Boyle was a golf professional for five years starting in 1969. He played golf on Sundays about four times but his religious beliefs became stronger over the years and he began to feel that it is not appropriate for him to golf on Sunday. Boyle was a member of the Jerome Country Club and belonged to the Men’s Association where his dues contribute to the prize money awarded at the club’s tournaments. A tournament round of golf consisted of playing 18 holes, and typically has an opening round on Saturday and a closing round on Sunday. In 1993, the Jerome Country Club professional, John Peterson, allowed Boyle to play 36 holes on Saturday during a club tournament after Boyle complained that he could not play the final Sunday round. But in 1994, Peterson refused a similar request by Boyle to play 36 holes on Saturday, and Boyle did not play in that tournament. It was undisputed that the club never refused to permit Boyle to enter a tournament or to play a round of golf.

In 1998, Christina Axson-Flynn entered the University of Utah’s Actor Training Program (ATP). Axson-Flynn, who is Mormon, refused to say the word “f___” or take God’s name in vain during classroom acting exercises. During Axson-Flynn’s first semester in the program, ATP faculty members-told Axson-Flynn to “get over” her refusal to use those words, saying that not using the words would stunt her growth as an actor. Axson-Flynn did not “get over” her refusal to say the words and eventually left the ATP (and the University of Utah) before the end of her second semester; although never ordered to leave, she assumed that she would eventually be forced out.

The absurd extension of the Boyle lawsuit – what might illustrate the externalities to Mormons – involved some Seventh-Day Adventists who sued because the basketball tournament in which they wanted to compete took place on Saturday, which is their Sabbath. Nakashima v. Board of Education, 204 Or.App 535 (Ore. 2006).

Now, what would happen if sports organizers were forbidden from holding events on both Saturday (as demanded by the Adventists) or Sunday (as demanded by the Mormons)? There would be no weekend sports competitions.

The extension to the Axson-Flynn lawsuit? This was a tougher one for me to find and posit. I settled on litigation over Salt Lake City’s West High’s choice of songs for the Holiday season. Rachel Bauchman was Jewish, and did not want Christmas foisted upon her. To her, the Christian songs were as offensive as baudy lines were to Christina Axson-Flynn. So she sued. Bauchman v. West High School, 900 F Supp 254 (D. Utah 1995).

What would happen if students could sue over being forced to do anything their conscience decided was objectionable, like Axson-Flynn and Rachel Bauchman? Standard curricula would become extinct. Copyrighted property like songs and plays would be subject to alterations.

Maybe it’s just me, because I am a lawyer who finds himself largely agreeing with much of the anti-attorney sentiment. My profession has become rotten through unscrupulous plaintiff’s lawyers. I think sometimes righteous causes in defense become offensive when they are ….. offensive, as in affirmative.

I do recognize that some of the greatest advances in civil rights occurred because of affirmative litigation. This does not make me cheer for the likes of John Boyle and Christina Axson-Flynn.

Part of it has to do with their claimed injury. For example, I would be among the first to come to Boyle’s defense if he were not admitted to (or kicked out of) the Jerome Country Club for refusing to play on Sunday, and Christina Axson Flynn if she were booted out of college entirely for refusing to utter saucy script lines. Wrongful reprisal surely requires affirmative litigation. However, these were not the facts of these cases. When people who are merely annoyed – who have their feelings hurt – hire lawyers to bring affirmative cases when they do not get their way, they lose their moral authority, at least with me. These are not really civil rights cases.

In case you were wondering, both the Boyle, Axson-Flynn and Bauchman cases were dismissed, though Axson-Flynn won a partial reversal from the 10th Circuit Court of Appeals. Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004).

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  • Greg

    I don’t remember the part about the Bauchman case being dismissed (and I don’t dispute that fact), but I do seem to recall that the choir’s Christmas performance was cancelled anyway. So, who “won” that battle?

  • http://www.totryanewsword.com/ kuri

    At my children’s schools, the choir directors have always avoided the “religious songs” problem by referring to them (e.g., Christmas songs, Hanukkah songs, and Negro spirituals) as “traditional” or “folk” songs. AFAIK, no serious problems have arisen.

  • Benjamin Orchard

    Jeff, this is my favorite of your posts so far. In the ward I currently live in, we have a number of lawyers, and I respect them very much–mostly because I know it takes a great deal of effort and time to earn your degree and then pass the bar exams.

    Frankly, however, I think that there are a lot of people that forget that the goal in life is not to be offended and force others to think like you, but to avoid giving offense and live so well that others want to be better.

    The Axson-Flynn case seems especially troubling to me, largely because she had every right to say to those professors, “I don’t feel that what you are asking is something I can do, and I don’t plan on changing my mind.” The professors would then have to decide how to handle that. In other words, in my mind, she lost all moral high-ground by being the aggressor, rather than simply taking a stand. If the professors had docked her grades or otherwise retaliated against her for taking a stand, then she could have brought a different case to bear, and do so with moral legitimacy.

    Good post.

  • Molly

    Wait, the same people who foisted their religious beliefs on the state of California last November also want schools and country clubs to conform to their demands as well? I’m totally shocked.

  • SW Clark

    On the religious songs in schools front, the policy in my district (in the Washington DC suburbs) was that they are acceptable, though no one religious tradition can dominate. Since so much of great classical music in the Western world has religious themes and cultural value it would be ridiculous to excise it, and the schools recognize that.

    My choir directors happened to all be Jewish and we certainly sang plenty in Hebrew. Our chamber group did a winter tour performing around the region each year, and sang plenty of Christmas songs (along with a few Jewish), though we tended toward the more secular ones.

    This policy seemed eminently reasonable, and respectful of the cultural and religious diversity of the area. Where there is more religious homogeneity (like Utah) or the concert is being called a “Christmas” concert (as opposed to “Winter” or “Holiday”) I can see where being in the minority would be more difficult. But complaining about singing the songs of another faith tradition (so long as that’s not ALL you’re singing) seems a bit over the top.

    I like your analysis though, and agree with Benjamin’s point: if ones grades were impacted that’s one thing, but leaving of your own accord is a form of recourse that should preclude being able to appeal to that of the courts.

  • CS Eric

    Molly,

    You are right, a group that is barely in double digits in population in California “foisted their religious beliefs” on the state through an election. Every other person in the state, regardless of religious affiliation opposed and voted against Prop 8.

  • http://eatingwell.wordpress.com Sam B.

    I was curious how Boyle could possibly assert a First Amendment claim against a private club. Turns out, he didn’t. He actually sued under Title II of the Civil Rights Act of 1964. His case was dismissed unceremoniously, but I imagine it would have been dumped even quicker if he had asserted violation of his First Amendment rights.

    Ms. Axson-Flynn at least had a colorable First Amendment claim, inasmuch as the University of Utah is a state actor.

    I don’t know that I’d be so quick to dismiss plaintiffs’ attorneys as unscrupulous. Certainly some are, but I’ve only personally known one, and he was weird but honest. I’ve never seen any empirical evidence (not that I’ve looked for it) that plaintiffs’ attorneys are any less honest statistically than members of any other subset of a profession or, for that matter, than the population at large.

  • http://eatingwell.wordpress.com Sam B.

    I probably should add that, notwithstanding the above, I share the unease about plaintiffs’ attorneys, an unease made stronger by the general tenor of subway ads I’ve seen for some of them. And neither Mr. Boyle nor Ms. Axson-Flynn really should have burdened the courts (and, if they were represented, their attorneys should have stopped them). I don’t do constitutional or civil rights law, but at least Mr. Boyle’s case didn’t have the proverbial snowball’s chance. The suit against the U? I think it potentially could have done harm to Mormon kids applying to arts programs, but I don’t see any evidence that it actually did. And at least her self-righteousness had the benefit of being a young person’s; an older person should have the experience and self-awareness to realize that the world doesn’t revolve around his or her being willing to compete in a golf tournament.

  • Jeff Breinholt

    You’re right about Boyle, Sam. I should have been more precise in describing his lawsuit as arising out of public accomodations part of the Civil Rights Act. I have been trained to think of religious discrimination cases as penumbrating our of the First Amendment, whereas race discrimination cases are out of the 14th Amendment. I admit that’s a little sloppy, even if defensible.

  • Paul

    I didn’t know that taking a stand (like post #3 said) can be considered”..foisting their religious beliefs on the State of California.” The issue here is that Axson-Flynn and Boyle were in essence pouting because they didn’t like the way that things were, so they decided to be aggressive rather than deal with it on a human level (take a stand or deal with it person to person). What happened last November was that a group decided to take a stand and act because there was a call for action and a decision was going to be made based on that action (a vote). They weren’t complaining, they simply stood up for what they believed in and asked others to also stand up for what they believe in. In the end, the majority spoke the way they believed. If more had thought the other way, then it would have turned out differently.

  • http://mormonmatters.org Bored in Vernal

    I think there is a big difference between taking a stand (as in, refusing to use objectionable language yourself or to participate on Sundays), and litigation which would FORCE others to change their lifestyles. I’m sure that you can all see the application I would make to the Church’s involvement in Prop 8, so I won’t belabor the point.

    Jeff, this was one of my favorite posts of yours, too. Interesting to think about.

  • http://eatingwell.wordpress.com Sam B.

    Absolutely defensible; I was just sincerely interested in whether Boyle had made a First Amendment claim. (Pro se, it wouldn’t be impossible for him to have made it, but I would think that a pro se case claiming free exercise violations against a private actor would be dismissed with an unpublished opinion.) But, since this isn’t my area, I wasn’t sure until I looked at the case.

    Anyway, thanks for this.

  • Greg

    “…the same people who foisted their religious beliefs on the state of California…”

    *Big sigh*

    You know, the church as an institution had no opinion about the cases cited in this post. I’ll cry “threadjack” on the Proposiiton 8 nonsense. This isn’t about Proposition 8, folks.

  • http://ethesis.blogspot.com/ Stephen M (Ethesis)

    Hmm, as an attorney who handles public law for the defense, I’ve lots of opinions, but I think I’ll pass on them. I know a large number of honorable plaintiff’s attorneys, including some that are perhaps more like Don Quixote, than I do those who are not. Plenty of all kinds, everywhere.

  • Rigel Hawthorne

    “although never ordered to leave, she assumed that she would eventually be forced out”

    I’m not an attorney, and the detail is clear, but it would seem that if she assumed that she would eventually be forced out that instructors were making her academic environment hostile. I would think that her instructors would have an obligation to make a reasonable accommodation rather than telling her to get over it. If this was the part she was cast in and the play is to be presented as copyrighted, that is one thing and she may have to accept the fact that she would have to settle for a different part if she objected.

    What if actors need to get over nudity to move on in their career in acting and object to being nude for religious reasons? It would seem that someone in acting school could still progress in acting through other lessons. Being told to “get over it” would seem to be questionable in the arena of sexual harrassment. Being told to “get over it” by someone who knows very well what the person’s religious views mean to them also seems a form of harrassment.

  • Rigel Hawthorne

    I meant to say, the detail is not clear…

  • Jenny

    Why are you finger pointing at Seventh Day Adventists and Mormons? Members of other religions sue on religious merits. In general the U.S. has become a frighteningly litigious society. If someone can think of a reason to sue someone else they will.

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