Shrum v. City of Coweta

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
June 8, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

REX SHRUM ,

Plaintiff-Appellee,
v. No. 04-7037
CITY OF COW ETA, OKLAHOM A, a
M unicipal corporation; STEVEN C.
W HITLOCK, individually,

Defendants,

and

DERRICK PALM ER, individually,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E EASTERN DISTRICT O F O K LAH O M A
(D.C. NO . 03-CIV-465-W )

John Howard Lieber, James C. Hodges and Shannan Pinkham Passley of Eller &
Detrich, P.C., Tulsa, Oklahoma for Defendants-Appellants.

James Patrick H unt and Douglas D. Vernier of James R. M oore & Associates,
P.C., Oklahoma City, Oklahoma for Plaintiff-Appellee.

Before BRISCO E, M cW ILLIAM S, and M cCO NNELL, Circuit Judges.

M cCO NNELL, Circuit Judge.
 Plaintiff-Appellee Rex Shrum is both a law enforcement officer and a

clergym an. A fter eight apparently successful years of juggling the two

responsibilities, his relationship with the management of the police department

soured, and the C hief of Police allegedly rearranged Officer Shrum’s work

schedule so it would conflict with his duties as a minister. Forced to choose

between his police and his ministerial responsibilities, Officer Shrum resigned

from the police department and filed this lawsuit. W e must now decide whether

the C ity of Coweta and the C hief of Police violated O fficer Shrum’s

constitutional rights to freedom of association, free exercise of religion, and

substantive due process.

I. FA C TUAL BACKGROUND

Rex Shrum has served as pastor of the C oweta Church of Christ, in eastern

Oklahoma, since April 1990. In 1994, he joined the police force of the City of

Coweta. He arranged with his new employer to give him W ednesday evenings

and Sundays off, so that he could continue to carry out his ministerial duties. H e

worked the day shift M onday through Friday as a detective. Officer Shrum was

also a member of the local lodge of the Fraternal Order of Police (FO P), which

was the certified bargaining agent for its members in the Coweta Police

Department.

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 Problems arose over Officer Shrum’s time sheets. He was supposed to put

his time sheets in the report box of Assistant Chief of Police Derrick Palmer on

Friday night, before leaving for the weekend, so the time sheets would be

submitted by the 8:00 M onday morning deadline. Officer Shrum had repeatedly

turned in time sheets late and had been reprimanded several times. On M onday

morning, June 18, 2001, the records clerk in the Police Department could not find

Officer Shrum’s time sheet for the previous week. On this occasion Officer

Shrum denied any wrongdoing. Another officer, Sergeant M ike Sullivan, stated

that he saw Officer Shrum’s time sheet in Assistant Chief Palmer’s box.

Nevertheless, Officer Shrum was suspended by the Department for three days

without pay. His suspension was announced in a letter from Assistant Chief

Palmer, dated June 22, 2001, which warned that further infractions w ould lead to

“progressive disciplinary action.” Officer Shrum filed a grievance, which the

City denied and which was submitted to arbitration on September 12, 2001, in

accordance with the collective-bargaining agreement between the City and the

FOP.

On October 2, 2001, Officer Shrum was again suspended by Assistant Chief

Palmer. This time, for submitting his time sheet late, he was suspended for five

days without pay and put on probation for six months. Officer Shrum again filed

a grievance. This grievance was later settled, with the City agreeing to pay

Officer Shrum for the days he was suspended.

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 In early 2002 Officer Shrum was reassigned to work as a patrolman under

Sergeant Joe Gist. In the new position he would continue on the day shift but

would not have Sundays off. To clear Sundays for his ministerial duties, Officer

Shrum asked Sergeant Gist for permission to move to the evening or midnight

shift. Sergeant Gist agreed, provided that Officer Shrum could arrange with the

evening or midnight shift supervisor to have an officer replace him on the day

shift. Officer Shrum made the necessary arrangements with Sergeant Sullivan,

who was the midnight shift supervisor and also the president of the FOP lodge.

Another officer moved to the day shift; Officer Shrum worked the midnight shift

and was off Sundays and M ondays.

On January 8, 2002, Officer Shrum received his semi-annual performance

review. In his review of Officer Shrum six months earlier, Assistant Chief

Palmer had marked two of the twelve evaluated areas as ones w here

“improvement is necessary”: “Adherence to Policy” and “Interpersonal

Relationship.” His new supervisor, Sergeant Gist, conducted the January 8

review and marked the same two areas “unsatisfactory.” In explaining the rating

for “Adherence to Policy,” Sergeant Gist noted that Officer Shrum had been

“disciplined this period. However, [he has] not had any problems recently.” For

“Interpersonal Relationship,” Sergeant Gist wrote that a “situation” with Officer

Shrum had “go[ne] bad with another supervisor in [the] presence of subordinate

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employees. Employee seems to have now resolved that situation.” Assistant

Chief Palmer signed and approved the performance review.

On January 29, 2002, the arbitrator reached a decision in the first time-

sheet dispute. The arbitrator found that Officer Shrum had not been late in

submitting his time sheet due on June 18, 2001, and that the City violated the

collective-bargaining agreement by suspending him. The arbitrator directed the

City to “rescind its discipline . . . in every respect,” to make Officer Shrum

whole, to “eliminate any record of this discipline” from his personnel file, and

never to consider the event to Officer Shrum’s detriment. Two weeks later,

Palmer, who had been promoted to Chief of Police, wrote to M r. W hitlock, the

city manager, advising him to resist the arbitrator’s decision until compelled by a

court to comply. In his letter to M r. W hitlock, Chief Palmer did not deny the

substance of Officer Shrum’s allegations; he insisted rather that the grievance was

not timely filed. M eanwhile, Officer Shrum continued to work the midnight shift

with Sundays and M ondays off, under the arrangement worked out with Sergeant

Gist and Sergeant Sullivan.

On M arch 15, 2002, Chief Palmer w rote to Sergeant Gist that he w as “very

concerned” about Officer Shrum’s “performance level.” Chief Palmer directed

Sergeant Gist to assign Officer Shrum to the day shift “for a minimum of 30

days” so he could receive “remedial training in supervision, ethics and

interpersonal relationships.” At his deposition, Chief Palmer could not recall the

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specific problems with Officer Shrum’s performance or the specific remedial

training that was needed. Chief Palmer did recall that if O fficer Shrum failed to

work Sundays under this new arrangement, he could be fired.

Remedial training was also ordered for Sergeant Sullivan, who had testified

in Officer Shrum’s favor at arbitration. Sergeant Sullivan received a negative

review in February 2002, was demoted and assigned remedial training in M arch

2002, and was fired in April 2002. An arbitrator ordered his reinstatement and

called the case “a classic example of what not to do when administering

discipline.” The arbitrator later reiterated the order and found that Sergeant

Sullivan’s halting reinstatement had been marked by “the taint of retaliation.”

On M arch 17, two days after the letter from Chief Palmer, Sergeant Gist

instructed Officer Shrum to begin working the day shift on M arch 19. Concerned

about a conflict with his ministerial duties, Officer Shrum asked Sergeant Gist

whether he could continue to have Sundays off. The parties dispute Sergeant

Gist’s answer. The Defendants maintain that Sergeant Gist told Officer Shrum

that he could not take Sundays off because a more senior officer had selected that

day, and according to the collective-bargaining agreement off-days were selected

by seniority. Officer Shrum’s evidence is quite different. He submitted a

deposition of Sergeant Gist to the effect that another officer was willing to trade

Sunday shifts with Officer Shrum. According to Sergeant Gist, Chief Palmer

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disapproved, insisting that Officer Shrum work on Sundays so that he could be

monitored.

On M arch 22, 2002, Officer Shrum wrote a resignation letter to Chief

Palmer, effective April 3, 2002. In the letter, Officer Shrum described his hiring

in 1994 as being done “with the understanding by both the chief of police, and the

city manager that my responsibilities at the Church had to be met,” and he

described the ease with which his ministerial duties had been accommodated.

According to Officer Shrum, in his eight years on the force he had created no

problems and caused no complaints from other officers. Nevertheless, Officer

Shrum said he was resigning because of Chief Palmer’s “continued religious

harassment”— “by forcing me to work on Sunday you have given me no other

choice.”

On August 22, 2003, Officer Shrum filed this suit in federal district court.

He brought many claims: violations of his federal constitutional rights of free

speech, freedom of assembly/association, and free exercise of religion; violation

of the Oklahoma Fire and Police Arbitration Act; wrongful termination against

public policy; violation of the Oklahoma Constitution; lack of substantive due

process; intentional infliction of emotional distress; and violation of the

Oklahoma Religious Freedom A ct. Officer Shrum sought actual and

compensatory damages from the City and actual, compensatory, and punitive

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damages from Chief Palmer and from the City M anager, M r. W hitlock, both of

whom he sued in their individual capacities.

By consent of the parties, the case was presided over by a M agistrate

Judge, whose decision will be referred to as that of the district court. See Fed. R.

Civ. P. 73; 28 U.S. C. § 636(c)(3). The Defendants moved for summary judgment

on all claims. The district court granted the motion in part, dismissing all claims

against M r. W hitlock on qualified immunity grounds, dismissing the First

Amendment free speech claim and the equivalent claim under the state

constitution, dismissing the claim under the Oklahoma Fire and Police Arbitration

Act, and dismissing the state tort law claims of wrongful termination and

intentional infliction of emotional distress. The district court allowed Officer

Shrum to proceed against the City and against Chief Palmer on three of his

federal claims— freedom of association, free exercise of religion, and substantive

due process— and on the state law claims that track them. Chief Palmer appeals

the partial denial of his motion for summary judgment on the federal

constitutional claims on qualified immunity grounds.

II. JURISDICTION AND STANDA RD O F REVIEW

Orders denying qualified immunity before trial are appealable only to the

extent they resolve abstract issues of law. Behrens v. Pelletier, 516 U.S. 299, 313

(1996). An interlocutory appeal is improper when the question is the sufficiency

of the evidence or the correctness of the district court’s findings with respect to a

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genuine issue of material fact. Johnson v. Jones, 515 U.S. 304, 313 (1995).

Because Chief Palmer argues that he is entitled to qualified immunity even under

the Plaintiff’s version of the facts, we have jurisdiction to hear this appeal

notw ithstanding its interlocutory character. DeAnzona v. City of Denver, 222

F.3d 1229, 1233 (10th Cir. 2000). Our inquiry on interlocutory qualified

immunity appeals is limited, however, to “abstract issues of law.” Johnson, 515

U.S. at 317. W e must “take, as given, the facts that the district court assumed

when it denied summary judgment” to the Defendant. Id. at 319.

Government officials are entitled to qualified immunity from liability for

civil damages under § 1983 when their “conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). W e review de

novo a denial of a summary judgment motion raising qualified immunity

questions. Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th

Cir. 2001). Once a defense of qualified immunity has been raised, we consider

two questions: (1) whether the alleged conduct violated a constitutional right, and

if so, (2) w hether the law was clearly established at the time of the defendant’s

actions. Saucier v. Katz, 533 U .S. 194 (2001). W e address each of these

questions for Officer Shrum’s claims of freedom of association, free exercise, and

substantive due process.

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 III. FR EED OM O F A SSO CIA TIO N

Officer Shrum’s first claim against Chief Palmer is based on interference

with his First Amendment freedom of association— specifically, his association

with a labor union, the Fraternal Order of Police. He alleges that the Defendants

assigned him to Sunday duty in retaliation for his membership in the union and

his invocation of his collective bargaining rights. 1

In the slightly different context of free speech claims by public employees,

the Supreme Court has formulated the four-part balancing test of Pickering v. Bd.

of Education, 391 U.S. 563 (1968); see Connick v. M yers, 461 U.S. 138, 142

(1983). One requirement for such a claim is that the speech address a matter of

public concern. Id. at 568. Neither this Court nor the Supreme Court has

determined, as a general matter, whether Pickering’s public concern requirement

applies to freedom of association claims. See Schalk v. Gallemore, 906 F.2d 491,

498 & n.6 (10th Cir. 1990) (requiring public concern where the “association” was

“nothing more nor less than an audience” for the employee’s speech but explicitly

declining to hold that public concern is always required); Flanagan v. M unger,

890 F.2d 1557, 1564 n.7 (10th Cir. 1989) (expressing “some doubt whether the

1
Plaintiff raises no claims under the federal labor laws.

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Pickering test, particularly the public concern prong, applies in freedom of

association cases”). 2

That question has divided the C ourts of A ppeals. 3 In this case, however,

we need not reach the broader question. In the specific context of public

employee labor unions, this Court has rejected the requirement that a worker

demonstrate that his association with the union be a matter of public concern. In

Butcher v. City of M cAlester, 956 F.2d 973 (1992), we upheld a jury verdict in

favor of a public employee union member’s freedom of association claim without

applying the public concern test. Three firemen sued the city of M cA lester,

Oklahoma, for violating their First Amendment right to participate in union

activities. Id. at 975 (styling the constitutional interest a “first amendment right

2
W e have subsequently reserved the question in several unpublished
opinions. See, e.g., Lunow v. City of Oklahoma City, 61 Fed.Appx. 598, 606
(10th Cir. 2003).
3
Five Circuits have adopted the public concern requirement for freedom of
association claims and two have not. See Hudson v. Craven, 403 F.3d 691 (9th
Cir. 2005) (applying the public concern test to hybrid speech/association claims);
Cobb v. Pozzi, 363 F.3d 89, 102-103 (2d Cir. 2004) (applying the public concern
test to association claims); Edwards v. City of Goldsboro, 178 F.3d 231, 249-50
(4th Cir. 1999) (same); Griffin v. Thom as, 929 F.2d 1210, 1214 (7th Cir. 1991)
(same); Boals v. Gray, 775 F.2d 686 (6th Cir. 1985) (same). But see Breaux v.
City of Garland, 205 F.3d 150, 157 n.12 (5th Cir. 2000) (not applying the public
concern test to association claims); Hatcher v. Bd. of Pub. Educ. and Orphanage,
809 F.2d 1546, 1558 (11th Cir. 1987) (same). See also Akers v. M cGinnis, 352
F.3d 1030, 1044 (6th Cir. 2003) (Clay, J., concurring and dissenting) (criticizing
the application of the public concern test to some associational claims); Balton v.
City of M ilwaukee, 133 F.3d 1036, 1040 (7th Cir. 1998) (suggesting that the issue
be reexamined).

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to peaceably assemble . . [and] to participate in the activities of Local 2284”).

Among other arguments, the city insisted that the firemen had no constitutional

claim because their union activities were not protected under Pickering. Id. at

979. W e rejected that argument. Id. at 979-80. See also M orfin v. Albuquerque

Pub. Sch., 906 F.2d 1434 (10th Cir. 1990) (reversing a grant of summary

judgment to a defendant on a union association claim without applying the public

concern test).

In these cases w e offered no lengthy explanation for not applying the public

concern test, but we did emphasize the self-imposed character of the collective-

bargaining agreement. W e noted that the city had “no license, where there is a

collective-bargaining agreement, to embark on union-busting activities.” Butcher,

956 F.2d at 979. The reason is apparent. The Pickering test is predicated on the

government’s “interests as an employer in regulating the speech of its

employees,” which “differ significantly from those it possesses in connection with

regulation of the speech of the citizenry in general.” Pickering, 391 U.S. at 568.

Those interests relate to “the efficiency of the public services it performs through

its employees.” Id. W here a public employer has negotiated with an employee

union and signed a collective-bargaining agreement, it has contractually agreed

to the legitimacy of the union and of its employees’ association with the union.

The public employer has presumably received the benefit of its bargain, and is

estopped from claiming that its “interests as an employer” are inconsistent with

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the freedom of its employees to associate with the union or to file grievances in

accordance with its procedures. See Butcher, 956 F.2d at 979 (once a public

employer signs a collective bargaining agreement, it no longer can assert a

“legitimate interest in whether its firefighters elected to join the union and

participate in its activities”). If a public employer retaliates against an employee

for engaging in acts protected by the collective-bargaining agreement— as Officer

Shrum alleges here— then the employer cannot rely on the Pickering test to avoid

First Amendment scrutiny.

Not only does the First Amendment freedom of association protect public

employees from retaliation for participation in a union with which their employers

have signed a collective-bargaining agreement, Butcher, 956 F.2d at 980, but as

this Court held in M orfin, 906 F.2d at 1439, “[t]he unconstitutionality of

retaliating against an employee for participating in a union [is] clearly

established.” W e therefore affirm the district court’s denial of summary judgment

on Officer Shrum’s freedom of association claim.

On remand, the district court should neither require “public concern” nor

engage in judicial balancing of the government’s interest in efficient operations

against the Officer Shrum’s interest in union association. The City of Coweta

already balanced those interests when it agreed to a collective bargaining

agreement. The Defendants are estopped from reneging on this agreement, either

by claiming that union association is not a matter of public concern or by saying

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that its interest in efficient operations outweighs Officer Shrum’s right to union

association.

IV . FR EE EXER CISE O F R ELIG IO N

The district court also denied Chief Palmer’s motion for summary judgment

on Officer Shrum’s free exercise claim, based on qualified immunity. The court

offered two rationales. First, it noted that “at least one court has found ‘any

religious activities of employees that can be accommodated without undue

hardship to the governmental employer, see 42 U.S.C. § 2000e(j), are also

protected by the first amendment.’” Order, at 13 (quoting Brown v. Polk County,

Iowa, 61 F.3d 650, 654 (8 th Cir. 1995) (en banc)). Second, the court noted that

there is a factual dispute regarding whether Officer Shrum’s “attempted exercise

of his religious freedoms guaranteed by the First Amendment, and Defendants’

know ledge of that attempt, was a motivating factor in the actions taken against

him.” Id. Chief Palmer urges two grounds for reversing the district court’s

denial of summary judgment.

A. Applicability of the Free Exercise Clause to Executive Action

Chief Palmer first offers the intriguing assertion that the Free Exercise

C lause protects citizens only from “enactment or enforcement of any law,

regulation or ordinance,” and not from the actions or decisions of an executive

official, such as the decision to move Officer Shrum to the day shift and to forbid

him from trading shifts with another officer. This argument is predicated on a

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narrow reading of the first and fifth words of the First A mendment: “Congress

shall make no law . . . .” U.S. Const., Amend. I. Congress is the legislative

branch, and the Amendment is directed at the making of “law.” Even after

incorporation of the First Amendment against the states, Appellant evidently is

arguing, the Amendment applies only to federal, state, and local legislative

activity and the direct enforcement thereof, and not to the independent exercise of

executive functions.

The Supreme Court has never explicitly held that the Free Exercise Clause

applies to executive action, though it has assumed on countless occasions that it

does. See, e.g., Lyng v. Nw. Indian Cem etery Protective Ass’n, 485 U.S. 439

(1988) (decision by Forest Service to build a road through territory sacred to

certain Indian tribes); Thom as v. Review Bd. of Ind. Employment Sec. Div., 450

U.S. 707 (1981) (decision by state unemployment compensation commission to

deny benefits to a worker unemployed on account of religious scruples); Cruz v.

Beto, 405 U.S. 319 (1972) (administrative actions by prison officials affecting

Buddhist prisoner); Sherbert v. Verner, 374 U.S. 398, 407 (1963) (denial of

unemployment compensation); cf. Pickering, supra (free speech claim arising

from executive personnel action); see also Axson-Flynn v. Johnson, 356 F.3d

1277 (10 th Cir. 2004) (reviewing executive action under the Free Exercise

Clause). Professor Leonard Levy posed the question without offering any clear

resolution:

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 [T]he First Amendment, when read literally, raises the question whether
any special significance should be attached to the fact that the prohibition
on power was imposed exclusively upon Congress instead of upon the
government of the United States. Did the specification of Congress imply
that restraints were not intended to be imposed upon other federal
authorities?

Leonard W . Levy, Legacy of Suppression: Freedom of Speech and Press in Early

American History 233-34 (1960) (emphasis in original).

The answ er to C hief Palmer’s argument and Professor Levy’s question, we

believe, is that the First Amendment applies to exercises of executive authority no

less than it does to the passage of legislation. The drafters’ use of the term

“Congress” was a result of two structural decisions: to limit the reach of the First

Amendment (as well as other protections of personal rights in the first eight

amendments) to the federal government, and to set forth these freedoms as a

freestanding Bill of Rights, separate from the main body of the constitutional

document. Neither of these evinced any intention to confine the Amendment to

actions of the legislative branch.

The early state constitutions, on which the First Amendment was patterned,

uniformly applied their versions of the Free Exercise Clause to all branches of

government. See The Complete Bill of Rights: The Drafts, Debates, Sources, &

Origins 13-52 (Neil H. Cogan ed., 1997) (quoting the religious freedom

provisions in the constitutions and charters of all thirteen original states). The

Delaware Declaration of Rights of 1776, § 2, for example, provided “that no

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authority can or ought to be vested in, or assumed by any power whatever that

shall in any case interfere with, or in any manner controul the right of conscience

in the free exercise of religious worship.” Id. at 15 (emphasis added). The New

York Constitution of 1777, § XXXVIII, provided “[t]hat the free Exercise and

Enjoyment of religious Profession and W orship, without Discrimination or

Preference, shall forever hereafter be allowed within this State to all M ankind.”

Id. at 26. The Pennsylvania Constitution of 1790, Art. IX, § 3, adopted

contem poraneously with the First Amendment, provided “that no human authority

can, in any case whatever, controul or interfere with the rights of conscience.” Id.

at 33 (emphasis added).

The first draft debated in the House of Representatives of what was later to

be the Religion Clauses read: “N o religion shall be established by law , nor shall

the equal rights of conscience be infringed.” 1 Annals of Cong. 757 (Aug. 15,

1789) (Joseph Gales ed., 1834). It was proposed as an amendment to Article I, §

9, which sets forth limitations on the powers of the federal government. The

proposal came under criticism because of the fear that it might be interpreted as a

limitation on state governments, many of which then had establishments of

religion of some sort. M oreover, for independent reasons, the First Congress

decided that the proposed amendments should be attached to the end of the

document, rather than interpolated w ithin it; this exacerbated the federalism

problem because it was only the placement of the religion amendment within

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Article I, § 9 that confined its reach in any way to the federal government.

M adison suggested that the problem could be most easily resolved by adding the

word “national” to the proposal, so that it would read that “no national religion

shall be established by law,” 1 Annals of Cong. 758-59, but this idea encountered

opposition from those still sensitive to the consolidationist implications of the

word “national.” See id. at 759 (statement of Rep. Gerry). 4 The solution was to

employ the word “Congress,” thus making clear that the limitations of what is

now the First Amendment did not apply to the States. (That limitation to the

federal government, of course, was later abrogated by incorporation of the First

Amendment against the States through the medium of the Fourteenth Amendment.

Cantwell v. Connecticut, 310 U.S. 296, 303-304 (1940).)

As this history shows, there was no intention to confine the reach of the

First Amendment to the legislative branch. Indeed, the first time anyone in

Congress explicitly argued that the strictures of the First A mendment applied only

to the passage of a “law”— in 1836, in connection with the right of petition 5 — the

suggestion was roundly rejected (“with ridicule,” according to the leading scholar

4
At the Constitutional Convention, in response to anti-nationalist
sensitivities, the Framers carefully deleted every mention of the words “nation” or
“national” that had appeared in the Randolph Plan. 1 Records of the Federal
Convention 335, 336, 404 (M ax Farrand ed., 1911).
5
12 Reg. Deb. 472, 475 (1936) (Sen. Gabriel M oore, arguing that the refusal
of Congress to receive petitions against slavery did not violate the First
Amendment right of petition because Congress was forbidden only to pass “laws”
and the refusal to receive a petition was not a law).

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on constitutional debates in Congress). See David P. Currie, The Constitution in

Congress: Descent Into the M aelstrom, 1829-1861, at 9 (2005).

One scholar has argued that the legislative history of the Establishment

Clause shows that “[t]he word ‘Congress’ was intentionally inserted to limit the

scope of the restrictions on the government to that single branch.” M ark. P.

Denbeaux, The First Word of the First Amendment, 80 Nw. U. L. Rev. 1156,

1169-70 (1986). Professor Denbeaux bases his argument on a remark by

Representative Huntington of Connecticut, a state that at the time had an

establishment of religion in the form of compulsory taxation for the support of

religion. See Thomas J. Curry, The First Freedoms: Church and State in America

to the Passage of the First Amendment 178, 183-84 (1986). Huntington feared

that the original version of the religion amendment would lead to federal law suits

preventing enforcement of the “bylaws” that had been enacted “for a support of

ministers, or building of places of worship.” 1 Annals of Cong. 758. The

substitution of the word “Congress” came shortly after Huntington’s remark and

can be seen as a response to it. See id. at 796. W e cannot agree with Professor

Denbeaux’s interpretation of this incident. Huntington’s concern stemmed from

uncertainty over whether the proposal would extend to state establishments, not

over any particular concern about a particular branch of the federal government.

At this juncture, the Judiciary Act had not yet been enacted, and Huntington

presumably assumed that the federal courts w ould be vested with the full

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jurisdiction implied by Article III— to all cases “arising under the Constitution.”

He thus w orried that an opponent of the Connecticut establishment could go to

federal court, invoke the proposed language “no religion shall be established by

law,” and obtain an injunction or other relief preventing enforcement of the

obligation to pay for support of ministers and buildings of worship. 6 His concern

was satisfied by confining the reach of the religion proposal to the federal

government. Indeed, after the proposal was further amended to forbid any “law

respecting the establishment of religion,” which prohibited the federal

government both from establishing religion at the federal level and from

interfering with establishments at the state level, see Akhil R. Amar, The Bill of

Rights: Creation and Reconstruction 32-33 (1998), confining the reach of the

amendment to the legislative branch would have been perverse from Huntington’s

point of view.

M oreover, even if the First A mendment itself applied narrowly only to

Congress and only to the making of “laws,” this would not be the end of the

matter. The Fifth Amendment, which undoubtedly applies to the executive

branch, provides that “no person shall be deprived of life, liberty, or property

6
Huntington made his remark on August 15, 1789. The House debate on
the Judiciary bill did not begin until August 24, 1 Annals of Cong. 812, and the
bill was not adopted until September 24, 1 Stat. 73. The Act did not vest the
federal courts w ith general federal question jurisdiction, and thus, under the Act,
Huntington’s feared lawsuit could not arise unless somehow diversity jurisdiction
could be contrived.

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without due process of law.” This means, among other less obvious things, that

executive officials cannot abridge a person’s liberty (including freedom of

religion) except in accordance with “law.” See Edward S. Corwin, The Doctrine

of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366 (1911);

Youngstown Sheet & Tube Co. v. Sawyer, 343 US. 579, 646 (1952) (Jackson. J.,

concurring). Thus, if the First Amendment forbids the making of “law” that

infringes the free exercise of religion, and the Due Process Clause forbids the

executive from taking away liberties except pursuant to “law,” it follows that the

First A mendment protects against executive as well as legislative abridgement.

Indeed, because executive action that bears upon the private rights of individuals

is almost always grounded in some statutory authority, a challenge to the

executive action may be characterized as an as-applied challenge to the statute.

Cf. Denbeaux, 80 Nw. U. L. Rev. at 1157 n.1. In substance, Officer Shrum’s

challenge to the executive actions of Chief Palmer is a constitutional challenge to

the statutory grant of power to the Chief of Police to supervise employees, as

applied in the circumstances of this case.

For all of these reasons, we reject the argument that Chief Palmer’s actions

are not covered by the First Amendment because they did not constitute the

enactment or enforcement of any law, regulation, or ordinance.

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 B. Neutrality and G eneral Applicability

Chief Palmer’s second argument for reversal is that the relevant regulations

and actions in this case were “neutral and generally applicable” within the

meaning of Employment Division v. Smith, 494 U.S. 872 (1990). “The transfer of

an officer to the day shift, without more, is neutral on its face,” and “[t]he CBA

[collective bargaining agreement] and its rank-takes-precedence rule for

determining days off are also religion-neutral.” Appellant challenges the district

court’s conclusion that the failure of a government employer to accommodate the

religious needs of an employee, short of undue hardship, is a violation of the First

Amendment. See Order, at 13. He argues that Brown v. Polk County, Iowa, 61

F.3d 650, 654 (8 th Cir. 1995) (en banc), on which the district court relied,

“contradicts the teaching” of this Court in United States v. Hardman, 297 F.3d

1116 (10 th Cir. 2002) (en banc), that “Smith creates a ‘safe harbor’ if the law is ‘a

valid and neutral law of general applicability.’” Appellant’s Br. 21.

W e agree with Appellant Palmer that the mere failure of a government

employer to accommodate the religious needs of an employee, where the need for

accommodation arises from a conflict w ith a neutral and generally applicable

employment requirement, does not violate the Free Exercise Clause, as that

Clause was interpreted in Smith. W e thus respectfully disagree with the Eighth

Circuit that “the first amendment protects at least as much religious activity as

Title VII does.” Brown, 61 F.3d at 654. The religious accommodation

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requirements of Title VII, 42 U.S.C. § 2000e(j), extend beyond the dictates of the

Free Exercise Clause, as interpreted by Smith. 494 U.S. at 878-82. Thus, the

mere refusal of Chief Palmer and the Coweta police department to accommodate

Officer Shrum’s religious scheduling needs, without more, does not establish a

constitutional violation.

But that is not the crux of Officer Shrum’s case. Officer Shrum alleges that

he was moved to the day shift precisely because of Chief Palmer’s knowledge of

his religious commitment. If so, the decision to transfer was not “neutral,” but

rather motivated by Officer Shrum’s religious commitments. W e recognize that

Chief Palmer asserts neutral reasons for his decision to require Officer Shrum to

work the day shift: that he was concerned about Officer Shrum’s “performance

level” and he needed “remedial training.” But these asserted neutral reasons are

disputed. At his deposition, Chief Palmer could not recall any specific problems

with Officer Shrum’s performance or the specific remedial training that was

needed. R. 380-81. Officer Shrum presented evidence that another officer had

been willing to trade shifts with him but that Chief Palmer would not permit it, R.

259, 381, and thus that the decision was not merely a neutral application of the

“rank-takes precedence” rule of the CBA.

The district court concluded that the relevant “facts are disputed,” and the

ultimate outcome of the case will turn on whether Officer Shrum’s religious

comm itment “was a motivating factor in the actions taken against him.” Order, at

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13. For purposes of interlocutory appellate review, the question before us is not

whether Chief Palmer’s account is worthy of belief, or even if the district court

was correct that there was a disputed question of material fact on this point, but

only whether, assuming the district court’s evaluation of the record was correct,

Officer Shrum has stated a constitutional claim strictly as a matter of law. W e

hold that the district court was correct that Officer Shrum’s allegations establish a

violation of his clearly established constitutional rights under the Free Exercise

Clause.

To be sure, Officer Shrum does not allege that Chief Palmer held Officer

Shrum’s faith against him or acted from religious prejudice. Rather, the claim is

that religious discrimination was the means to an entirely secular end: Chief

Palmer w anted to force Officer Shrum out, and making him choose between his

duties as a police officer and his duties as a minister was the method at hand. But

the Free Exercise Clause is not limited to acts motivated by overt religious

hostility or prejudice. As its language suggests, the animating ideal of the

constitutional provision is to protect the “free exercise of religion” from

unwarranted governmental inhibition whatever its source. The first draft, as it

came from the pen of James M adison, was even more emphatic: “nor shall the full

and equal rights of conscience be in any manner, or on any pretext, infringed.” 1

Annals of Cong. 451 (June 8, 1789) (speech by Rep. M adison) (emphasis added).

Representative Daniel Carroll of M aryland— not coincidentally, as a Roman

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Catholic, the most conspicuous example in the First Congress of a member of a

religious minority— commented that “the rights of conscience are, in their nature,

of peculiar delicacy, and will little bear the gentlest touch of governmental hand.”

1 Annals of Cong. 757 (Aug. 15, 1789).

True to this history, the Free Exercise Clause has been applied numerous

times when government officials interfered with religious exercise not out of

hostility or prejudice, but for secular reasons, such as saving money, 7 promoting

education, 8 obtaining jurors, 9 facilitating traffic law enforcement, 10 maintaining

morale on the police force, 11 or protecting job opportunities. 12 Proof of hostility or

discriminatory motivation may be sufficient to prove that a challenged

governmental action is not neutral, Church of the Lukumi Babalu Aye v. City of

Hialeah, 508 U.S. 520, 533 (1993); Axson-Flynn v. Johnson, 356 F.3d 1277, 1294

7
Sherbert v. Verner, 374 U.S. 398 (1963).
8
Wisconsin v. Yoder, 406 U.S. 205 (1972).
9
In re Jenison, 375 U.S. 14 (1963) (per curiam).
10
Quaring v. Peterson, 728 F.2d 1121 (8th Cir.1984), aff’d sub nom. Jensen
v. Quaring, 472 U.S. 478 (1985) (per curiam affirmance by an equally divided
Court).
11
Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170
F.3d 359, 366-67 (3rd Cir. 1999) (Alito, J.).
12
Tomic v. Catholic D iocese of Peoria, — F.3d — , 2006 W L 851640 (7th
Cir. April 4, 2006); Rayburn v. General Conference of Seventh-Day Adventists,
722 F.2d 1164 (4th Cir. 1985).

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(10 th Cir. 2004), but the Free Exercise Clause is not confined to actions based on

animus.

This brings us to the question of whether the law on this constitutional

violation was clearly established. Chief Palmer’s argument for qualified

immunity reiterates his legal argument that his actions w ere neutral and generally

applicable, an argument which we have rejected as a matter of law. Chief Palmer

does not dispute that it was clearly established that non-neutral state action

imposing a substantial burden on the exercise of religion violates the First

Amendment. If Officer Shrum’s factual allegations are correct— that he was

singled out precisely because of Chief Palmer’s knowledge of his religious

commitment— then Chief Palmer’s claim of qualified immunity must fail. Only if

the finder of fact ultimately concludes, as a matter of fact, that Chief Palmer had

a neutral basis for his personnel actions, does he have a defense. This is thus a

case where the claim of qualified immunity collapses into the merits. The district

court was correct to hold that it should proceed to trial on the free exercise claim.

V. SUBSTANTIVE DUE PRO CESS

Officer Shrum’s final claim is that his substantive due process rights were

violated. W e have not yet decided which property interests in employment are

protected by substantive due process, see Hennigh v. City of Shawnee, 155 F.3d

1249, 1257 (10th Cir. 1998), and we need not decide the question today. Officer

Shrum’s substantive due process claim restates his other constitutional claims at a

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higher level of abstraction. W here a plaintiff has recourse to an “explicit textual

source of constitutional protection,” Graham v. Connor, 490 U.S. 386, 395

(1989), a more general claim of substantive due process is not available. See

County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998); Dubbs v. Head Start,

Inc., 336 F.3d 1194, 1203 (10th Cir. 2003). W ithout a constitutional claim, we

need not consider w hether the law was clearly established. See Butler v. Rio

Rancho Pub. Sch. Bd. of Educ., 341 F.3d 1197, 1200 (10th Cir. 2003).

W e A FFIR M the denial of summary judgment on the freedom of

association and free exercise claims, REV ER SE the denial of summary judgment

on the substantive due process claim, and REM AND for further proceedings not

inconsistent with this opinion.

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No. 04-7037, Rex Shrum v. City of Coweta, et al.

BR ISC OE, J., concurring:

I write only to address Chief Palmer’s textual argument that the free

exercise clause is not implicated because Shrum is not challenging the enactment

or enforcement of any law, regulation, or ordinance. I would reach the same

conclusion on the issue as the majority, but I would rely instead upon our

decision in Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004), and prior

Supreme Court cases. Chief Palmer devotes a mere paragraph to his textual

argument, without citation to any legal authority other than the text of the First

A mendm ent. Shrum’s brief does not even respond to the argument. In my view ,

it is sufficient to note, as the majority has, that the Supreme Court has assumed on

several occasions that the free exercise clause is not as restricted as Chief Palmer

suggests here. M ore recently, in A xson-Flynn, we assumed that the free exercise

clause was not restricted to challenges involving a law, regulation, or ordinance.

There, the plaintiff brought a 42 U.S.C. § 1983 action against the staff of the

University of Utah’s Actor Training Program, alleging, in part, that the staff

forced her to say offensive words contrary to her religious beliefs in violation of

the free exercise clause. Id. at 1294. W e concluded that a genuine issue of

material fact existed as to whether the staff’s requirement that students perform

acting exercises as written was pretextual or a neutral rule of general

applicability. Id. In a footnote, we clarified that our “use of the word “rules” . . .
mean[t] a state’s or state actor’s laws, regulations, or other policies which act on

private persons.” Id. at 1294 n.17. As is evident from Axson-Flynn, government

conduct is subject to the free exercise clause’s protections.

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