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).