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Free Speech

Man Sues Diocese for Using Crucifix During 1925 Baptism


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."