May 5, 2006

Prison chaplain can't bar gay band leader, court says

by Eric Resnick

Cincinnati--An Ohio prison chaplain cannot stop an openly gay inmate from leading a band just because he is gay, according to the Sixth Circuit Court of Appeals.

A three-judge panel delivered the unanimous decision April 26. It held that officials of Madison Correctional Institution in London, just west of Columbus, did not violate the Rev. William Akridge�s rights when they disciplined him for keeping the prisoner out of the band.

The court didn�t create a sexual orientation non-discrimination policy in Ohio�s prisons with the ruling, but it said that the chaplain�s right to free speech cannot interfere with the state�s right to set policies in its prisons, and to discipline employees.

The judges affirmed a 2004 decision by Columbus federal judge James L. Graham to dismiss Akridge�s case against Ohio Rehabilitation and Correction director Reginald Wilkinson, prison warden Alan Lazaroff and his deputy Bobby Bogan, Jr., who was Akridge�s supervisor.

Akridge complained that Lazaroff and Bogan unconstitutionally retaliated against him for refusing to allow the inmate to lead a �praise band� that was part of Protestant worship services at the prison.

Akridge is an ordained minister in the American Baptist Church. He was represented by attorneys David Langdon and Jeffrey Shafer, law partners when the case began, who represent most of the anti-gay interests in Ohio�s courts.

Shafer is now in the Washington, D.C. office of the Alliance Defense Fund, a national anti-gay legal group. Langdon said Shafer primarily handled the case.

According to court papers, the inmate complained to Bogan, and Akridge admitted that he kept him out because the inmate was a �practicing homosexual.�

Akridge said he believes "homosexual behavior is immoral, sinful, perverse and contrary to the teachings of the Bible and the Christian faith."

Bogan ordered Akridge to let the inmate be one of the directors, and Akridge refused. Lazaroff then charged Akridge with insubordination. A disciplinary hearing was held, and Akridge was fined two days� pay.

Akridge sued in federal court claiming that the prison violated his First Amendment right to free speech, and that his action of discrimination against the gay inmate was not a matter of public concern.

Akridge based his First Amendment claim on two U.S. Supreme Court rulings often used to give legitimacy to anti-gay discrimination: the 1995 Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, which gave parade organizers a First Amendment exemption from the city�s non-discrimination law, and the 2000 Boy Scouts of America v. Dale, which allowed the Scouts to ignore New Jersey�s equal rights laws.

Circuit Judges Martha C. Daughtrey, Ronald L. Gilman, and District Judge Thomas B. Russell, sitting by designation from the Western District of Kentucky, held that Akridge�s right to free speech as an individual was superseded in this case by his responsibility as a public employee, speaking for the prison.

They agreed with the district court that Akridge�s conduct constituted �speech,� but that it was �mixed speech,� which it defined as �the employee at issue speaks not only as both a citizen and an employee, but the content of [the] speech involves both matters of public and private concern.�

Writing for the panel, Russell said, �Akridge�s speech clearly contains elements of private concern (specifically, arguments about his authority as a chaplain to make final decisions about the worship services at Madison) but also contains elements that . . . are of public concern.�

�Where the speech in question is mixed speech,� wrote Russell citing case law, ��if any part of an employee�s speech, which contributes to [his being disciplined], relates to matters of public concern,� � courts must use what is known as the �Pickering balancing test� named after the 1968 U.S. Supreme Court case that established it, to determine whether it is protected or not.

�Public employee speech, even if touching on matters of public concern, will not be constitutionally protected unless the employee�s interest in speaking on these issues outweighs the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees,� the test goes.

In this case, the panel agreed with warden Lazaroff�s statement that �it was bad penology to exclude an inmate from a program simply because of a characteristic such as sexual orientation, thereby creating tensions among the prison population.�

The court noted the state�s evidence suggesting that it has a sexual orientation non-discrimination policy when dealing with prisoners, but said it was �not conclusively� so.

However, it did not need to be so in order to decide this case, because of �an earlier Sixth Circuit case� which it did not name, that held that a gay inmate had the right to bring a federal civil rights suit against a prison chaplain who denied him participation in religious services.

In this case, the panel said that the state�s interest in avoiding such a federal suit tips the Pickering balance in favor of the prison and its administrators.

Asked if the case would be appealed to the U.S. Supreme Court, Langdon referred the question to Shafer, who was not available for comment by press time.

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