concurring in part and dissenting in part.
I agree that the record presents a genuine issue of fact as to whether Deputy Warden Dunn improperly barred Mr. Phelps from attending religious services. No such issue is presented, in my view, with respect to the Rev. Mr. Edwards.
*103Rev. Edwards gave a sworn deposition in which he testified that he “specifically let [Mr. Phelps] know that he was welcome in my service and congregation at any time.” It was only when Phelps asked what it would take for him to be allowed to lead the singing or sing a “special” that Rev. Edwards told him “he would have to be Biblical.” (The men looked at the scriptures together, and Rev. Edwards pointed out passages that he interpreted as saying that homosexuality is not permitted for Christians.) It is undisputed that Phelps was given to understand that he could not participate in leading the singing or in singing solos as long as he engaged in what Rev. Edwards referred to as “active gay practice.” 1 Rev. Edwards repeatedly testified, on the other hand, that he never barred Paul Phelps from attending services.
What prompted Mr. Phelps to initiate this lawsuit was the denial of “equal participation” in the chapel services. That is what Mr. Phelps said in the affidavit he filed subsequent to the taking of Rev. Edwards’ deposition, and that is what he said in his original complaint. (That complaint did not accuse Rev. Edwards of barring Phelps from attendance at religious services; what it said, rather, was that the defendants “denied me an active part in religious services_”)
It is true that Mr. Phelps’ affidavit cites one occasion on which Rev. Edwards is supposed to have said “that a practicing homosexual was not allowed to attend his services and that I was not welcome in the chapel.” The next sentence of the affidavit, however, says that Phelps brought this incident to the attention of Capt. Sims, who “instructed Edwards that he could not deny me equal participation in chapel services.” Phelps continued to go to the services— there is no dispute about this — and he complains that Rev. Edwards, together with Deputy Warden Dunn, “barred me from being an active participant in the chapel services.” (Emphasis supplied.) Both Phelps and Rev. Edwards draw a distinction between active participation and simple attendance.
Phelps’ affidavit indicates that there came a time Phelps was “effectively barred,” from the chapel, but it is Deputy Warden Dunn who is said to have kept him away:
“Although Deputy Dunn was not the warden responsible for religious services, he still effectively barred me from the chapel. During the early stages of my grievance, defendant Dunn instructed or allowed Capt. Sims to tell me that if I continued to keep coming to chapel I would be locked up. Effectively, Dunn did keep me out of the chapel by continually having me written up or locked up.”
Given Rev. Edwards’ unequivocal testimony that he (Rev. Edwards) never barred Paul Phelps from attending services, it does not seem to me that Phelps’ affidavit is sufficient to create a triable issue of fact as far as Rev. Edwards is concerned.2 I would therefore affirm the judgment of the district court in favor of Rev. Edwards.
. Rev. Edwards indicated that he had "security reasons” for not wanting active homosexuals to lead the singing or give testimony, but he said he also had "conviction reasons.” The deposition never mentions such considerations as concern over the spread of AIDS, or the fact that the practices in which Phelps engaged violated prison regulations and Kentucky law; Rev. Edwards' real concern, as his deposition makes very clear, was that people who openly flouted what Rev. Edwards took to he the teachings of the Bible should not be selected to lead the liturgy. My colleagues on the panel have con-eluded that the courts could not properly interfere with Rev. Edwards’ freedom of choice in such matters, and I fully agree.
. An interesting question would have been presented if Rev. Edwards had sought to bar Phelps from even attending the services and had cited doctrinal reasons for doing so. Rev. Edwards said he had no problem with allowing all inmates to attend, however; just as in churches outside, homosexuals "would be welcome as they could be in the congregation.”