Free Speech

Man Sues Diocese for Using Crucifix During 1925 Baptism

|The Volokh Conspiracy |

From Fermin v. Priest of St. Mary (5th Cir. July 24, 2019):

Frederick Collins Fermin sued the Diocese of El Paso and an unnamed priest for using a crucifix during his baptism in 1925. He alleges that the priest did so "in violation of God's law," citing, among other Bible verses, the Second Commandment's prohibition of idolatry. See Exodus 20:4.

No luck, unsurprisingly, though the specific basis for the dismissal was lack of diversity jurisdiction and lack of a question of federal law:

Moving to federal question jurisdiction, we note that Fermin raises a First Amendment claim. That claim arises under federal law, so it survives a challenge to subject matter jurisdiction unless it is so "completely devoid of merit as not to involve a federal controversy."

But a First Amendment claim against a church and a priest cannot meet that low bar. The First Amendment constrains state action, not private conduct. Churches and priests are not state actors. Indeed, if the First Amendment had any role to play in this case, it would be to warn us against delving into a dispute about religious doctrine.

The Diocese had erred in filing its answer two days late, but this wasn't fatal to its defense: "[W]ithout subject matter jurisdiction, the district court could not have granted a default judgment even if one had been warranted."

UPDATE: Commenter hardreaders writes, "Definitely a failure of Second Commandment remedies here."

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  1. He should have invoked admiralty jurisdiction, since the baptismal water was probably from a navigable waterway.

    1. WOTUS for the win

  2. I’m a little surprised it even made it to the 5th circuit.

    I suppose the 5th Circuit can’t just issue a one word opinion? “No”.

  3. I guess one need not worry about the statute of limitations on a nonexistent cause of action.

    1. Even so, it’s been 94 years since his baptism! That’s beyond virtually any SOL.

      1. IIUC the SOL would be the date of death although if one is Roman Catholic then one would definitely receive at least a hearing before being sent to one of several destinations. 🙂

        1. Doesn’t matter. He’s going to Hell for going to a court to plead God’s law, instead of taking it up directly with Him.

  4. I had an enjoyable excursion through a number of Wikipedia articles going a little deeper than I had in this area for some time. I can relate to the plaintiff, having been raised in the Calvinist tradition, which views iconage similarly to that by modern Judaism and Sunni Islam, except that we go so far as to allow an unadorned cross. And given his citation to the 2nd Commandment, his tradition is similar to mine, essentially adopting the Jewish version of the 10 Commandments (it apparently has been incorporated into the 1st Commandment by, for example, the Roman Catholic Church, into which he appears to have been baptized so many years ago.

    And that would be my response to him – if he didn’t like his Catholic baptism, then he should just get rebaptized in a tradition that he believes in. Theologically, it shouldn’t matter, since according to my understanding of Christian dogma, what matters in the end, is your state at death. If he is right that icons at the time of his original baptism allowed sin into his life, this can be cleansed through acceptance of Jesus as his Savior, repentance, and, if he is really worried, then rebaptism.

    1. If he’s some weird form of Catholic that hates icons or an Anabaptist he’d have to be baptized again (or some weird, more modern, sect), but otherwise it’s pretty meh on a “proper” baptism being required.

      I will go on the record and say that I doubt he’s an Anabaptist. They’d just do it over again now that he’s a believing adult, since that’s literally the reason the denominations exist.

    2. Then again in the Calvinist tradition there is the matter of predestination.

      This seems to flow naturally from an omnipotent god who therefore must be omniscient and know everything that will ever happen.

  5. Why did the District Court dismiss? Just because it did not have jurisdiction? Plenty of District Courts hear cases that they don’t have jurisdiction to here. Make the parties go through the expense of the trial, then let the Circuit Court decide that there was no jurisdiction. Or maybe, the Circuit Court can be politically attuned and deny defendant’s motion…no chance in hell the Supreme Court would hear the case. Make those dirty religious people pay.

    Sarcasm alert (after the fact).

    1. My mistake…the District Court DID overrule Defendant’s motion. The Circuit Court should have upheld the District Court. Make the dirty religious people pay.

      Once again, I am being sarcastic. Must be the wine.

      1. My further mistake. The District Court dismissed and the Circuit Court affirmed. I wish the article had made this clear. I had to hunt down the decision. Definitely the wine is affecting my almost completely absent senses.

        1. Perhaps he should summarize the key points ala “tl;dr”. Maybe “td;drw”: “too drunk; didn’t read well.”

        2. Well it appears you have the communion rites well in hand! /sarc

  6. In a case centered on using a crucifix; there’s gotta be a CROSS-examination joke in there somewhere.

    1. Definitely a failure of Second Commandment remedies here.

      1. That was funnier than what I thought of.

  7. 14 comments, and I literally couldn’t get to the bottom of them on my Ipad without being “Congradulate”ed. Had to switch to my desktop.

    What a great deal of trouble for Frederick to go to, just to advertise to the world that he’s a moron.

    1. Not only trouble but money. According to PACER he’s out to the tune of about $900 in filing fees between the DCT and the appeal. Google searching also suggests that he’s a bit of a frequent flier with the pro se complaints.

      1. Fool – Money = Fool

        1. Leaving the question of how the fool got the money in the first place.

          1. Very few people are comprehensively foolish, and those few tend not to make enough of a stir for us to hear of.

  8. Plaintiff’s prayer for relief went unanswered.

    1. IIUC plaintiff’s prayer for relief was answered however like many prayers, it was not the answer plaintiff was hoping to receive.

  9. Why is this not deemed frivolous?

    1. Because if the courts routinely sanctioned frivolous lawsuits, the legal community would get less revenue? Even a pro se action like this results in defense lawyers getting paid.

      1. Unlikely. Routine impositions of frivolousness sanctions would increase the legal community’s revenue. In theory, at least. In practice, this pro se nutjob (to use the technical term), like so many others, couldn’t actually pay an award of fees to the defense lawyers.

        1. The real problem is that the trained professional attorneys really, REALLY hate losing to the pro se nutjobs, but it hardly ever happens so swatting aside a pro se suit is usually easy money but not GUARANTEED to be easy, or money.

    2. “Why is this not deemed frivolous?”

      Because the legal definition of “frivolous” is hard to meet.

  10. OK, just throwing this out to the lawyers…

    Could/should this have been a contractual dispute?

    As in the Diocese was supposed to use the two-headed dildo (not the one-head dildo or whatever they use) for the baptism?

    1. Wouldn’t work if he was a minor when baptized, because minors can’t form contracts.

      1. “because minors can’t form contracts.”

        Yes they can. Not only can minors be held to their contracts for things considered essentials, but even for nonessential contracts the contract typically becomes fully enforceable if not repudiated when the minor turns 18.

        More importantly, the fact that the other party is a minor does not excuse a breach of contract by an adult party. The lack of capacity protects the minor, not their counterpart.

        1. “Yes they can.”

          No, they can’t. That’s why they’re allowed to repudiate on majority, because the thing that has changed in the shift from minor to major is the capacity to understand contracts.
          Incapacity is also why minors can elect to engage in sexual relations with adults (or with other minors, depending on which state).

          1. Yes, they can. If they couldn’t, there would be no contract for them to repudiate on majority. And again, minors can enter into contracts for essential goods that are enforceable against them, even when they are minors.

            1. “incapacity” means “incapacity”, except when it doesn’t? OK.

              1. Wait till you find out what a showing of “actual malice” requires!

                1. It’s more impressive if you say it in Latin.

                  1. So you can misunderstand legal principles in two languages? How very impressive.

                    1. Gosh, I can’t even misunderstand legal principles in one, and you can do it two?

          2. – “No, they can’t.”

            That is a simplistic generalization to which there are quite a few notable exceptions (contracts for so-called “necessaries”, like food, shelter, clothing, education, banking, etc), as was already pointed out. In some states (like CA & NY) a minor can be held to a contract…both while still a minor and after reaching majority…entered into on their behalf by a parent/legal guardian for things like entertainment industry employment.

            – “That’s why they’re allowed to repudiate on majority”

            Not surprisingly, that’s quite backwards. In most cases disaffirmance must occur *before* reaching the age of majority. It is not an ability that springs into existence *on* reaching majority. If not disaffirmed prior to that time the contract may then become enforceable.

    2. “Could/should this have been a contractual dispute?”

      There’s almost certainly not a contract specific enough to avoid having to decide matters of religious doctrine, so it probably wouldn’t have worked as a breach of contract suit either.

      Even assuming the minor formed the contract, rather than his parents, the statute of limitations for the breach of contract claim would have expired decades ago.

  11. I don’t know which is stranger: the fact that the case was filed at all, or the fact that it’s factually meritless. A crucifix is not used in the rite of baptism, either currently or as it was performed in 1925.

    1. Perhaps the old geezer is getting his rites confused. It sounds more like an exorcism with the cross not a baptism. /sarc

    2. ” A crucifix is not used in the rite of baptism, either currently or as it was performed in 1925.”

      Then if it was used in this guy’s baptism, this is a malpractice suit. Or maybe he wasn’t baptized into the religion you (and he) think he was. Should have been tipped off by all the virgin’s blood smeared on the walls and the pentacle on the floor.

    3. Certainly wasn’t when my son was baptized, though there was one on the wall quite close to the baptismal font.

      Quite impressive of him to have remembered little details of such an early event in his life.

      1. All he had to do was look at the video.

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