The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Defendant Olivia Craven's Renewed Motion for Summary Judgment. (Dkt. 27.) Having reviewed the parties' filings, as well as the record in this case, the Court has determined that oral argument is unnecessary. Accordingly, the Court enters the following Order granting the Renewed Motion for Summary Judgment.
Plaintiff Gerald L. Anderson (Plaintiff) is an Idaho Department of Correction (IDOC) inmate who sought release on parole in 2005, and continues to seek parole today. The defendant in this case is Olivia Craven, Executive Director of the Idaho Commission of Pardons and Parole (Defendant). Plaintiff is serving a sentence for aggravated DUI and has two prior DUIs on his record. As a result, the Idaho Commission of Pardons and Parole recommended that Plaintiff participate in a Therapeutic Community (TC) program for rehabilitative purposes prior to parole.
This case concerns whether Defendant violated Plaintiff's First and Fourteenth*fn1 Amendment rights in requiring him to attend the Therapeutic Community Program ("TC"), which included Alcoholics Anonymous ("AA"), a religion-based program, prior to considering his eligibility for parole. (Dkt. 16, Attach. 3, Ex. A.)
The Court earlier determined that Plaintiff is not entitled to monetary relief. (Order of March 26, 2009, Dkt. 20.) The Court left open the issues of whether Plaintiff was entitled to declaratory or injunctive relief, because it appeared that there was a genuine issue of material fact as to whether Defendant Craven, in her official capacity, has provided Plaintiff the opportunity to complete a truly secular program as part of his therapeutic program and whether Plaintiff's opposition to the program will be used as a factor in future parole hearings. Defendant was invited to file a second supplemental motion for summary judgment if facts existed to support her position that Plaintiff's remaining claims are moot.
Defendant filed a second motion for summary judgment, but, in response, Plaintiff brought up an additional issue--not simply whether the now-optional AA/NA portion of the TC Program was religious in nature, but whether the entire TC Program is religious in nature and has "religious overtones" such that it violates the First Amendment. Rather than not permitting Plaintiff to enlarge his claims in that manner, the Court permitted Defendant to file a third motion for summary judgment to address Plaintiff's expanded claim.
DEFENDANT'S THIRD MOTION FOR SUMMARY JUDGMENT
1. Applicable Standards of Law
A party is not entitled to a declaratory judgment that his constitutional rights were violated when the violation has ceased and there is no evidence that the conduct toward him will be repeated. Green v. Branson, 108 F.3d 1296, 1299-1300 (10th Cir. 1997). Rather, suits for declaratory or injunctive relief must present a live controversy justiciable under Article III of the Constitution. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126-27 (2007) (declaratory judgment); City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (injunctive relief). An actual, justiciable controversy must exist not only at the moment that the suit is initiated, but also at the time that the party's entitlement to the requested relief is decided. Golden v. Zwickler, 394 U.S. 103, 108 (1969). Past injury, without more, cannot form the basis for either injunctive or declaratory relief. O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974) ("Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects."); Haase v. Sessions, 835 F.2d 902, 911 (D.C.Cir. 1987) (equating case-or-controversy requirement for declaratory judgment with one applicable to request for injunctive relief); see also Green v. Mansour, 474 U.S. 64, 74 (1985) (rejecting the view that "declaratory judgments expressly adjudicating the question of past violations are routinely available").
Generally, the Establishment Clause of the First Amendment is invoked by litigants asserting that the government is sponsoring religion, while the Free Exercise Clause is implicated where the government is allegedly attempting to discourage a religion or practice. However, the line between these two Clauses is often blurred.*fn2 In Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947), the United States Supreme Court defined the reach of the First Amendment Establishment Clause as follows:
The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.
Id. at 15-16. A program violates the Establishment Clause if its primary effect is to advance or inhibit religion. Gray v. Johnson, 436 F.Supp. 2d 795 (W.D. Va. 2006) (citing Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 337 (1987)).
In Gray v. Johnson, the federal district court noted that a prison TC program must be able to: strike the necessary constitutional balance between the inmates' right to speak and their right to be free from state-sponsored religious indoctrination. It is no more permissible to force participants to check their religion at the door than it is for the government to ...