There are two wildly different versions of the events that occurred in Louisburg, Kansas, on November 22, 2013.
Version A: Mary Anne Sause, a retired Catholic nurse living on a disability pension, had her apartment invaded by two Gestapo-like police thugs for no discernible reason. They demanded that she stop praying and scornfully dismissed her demand for her constitutional rights. This is the version you’ll read in the Christian press, with breathless headlines like: “Police Tell Woman She Can’t Pray Inside Home, Constitution Is ‘Just a Piece of Paper.’”
Version B: Louisburg police received a complaint about Mary Anne Sause, an eccentric troublemaker who was disturbing her neighbors by blasting her radio too loudly. When they arrived and tried to reason with her, she was uncooperative and obstreperous, at one point dropping to her knees and praying. After a few minutes of this, Officer Lee Stevens told her to get back up and pay attention. After repeatedly insisting that she’d had a double mastectomy, she raised her shirt up to show the officers her scars, to which they reacted with disgust. They wound up giving her citations for disorderly conduct and interfering with law enforcement, which she has never contested.
What’s common to both versions is that two years later, Ms. Sause brought a lawsuit against the officers, claiming they had violated her First Amendment right to free exercise of religion by telling her to stop praying. She wasn’t looking for a way out of her disorderly conduct ticket. She was looking for a big, fat damages check. And maybe a Christian book deal?
The legal principles involved in damages suits against law enforcement officers are straightforward and noncontroversial. Police enjoy a status called “qualified immunity,” which means they can only be found personally liable if they violate a “clear standard of conduct”—e.g., using excessive force against a defenseless suspect. As the Tenth Circuit put it, they can only be found liable if “any reasonable officer would have known this behavior violated” such a clear standard. Without qualified immunity, police would be hamstrung in doing their jobs, as they would never know when some creative plaintiff’s lawyer would sue them for millions of dollars on some novel theory that no court or legislative body had ever considered before.
The Tenth Circuit upheld the district court’s reasoning that even if everything Sause claimed were true, “It certainly wouldn’t be obvious to a reasonable officer that, in the midst of a legitimate investigation, the First Amendment would prohibit him or her from ordering the subject of that investigation to stand up and direct his or her attention to the officer.” So it tossed the case, before even getting to the part where Officer Stevens would have had the chance to present his version of what happened. In Kansas, good common sense prevailed.
But not in Washington. With the help of a well-heeled God lobby legal institute, Sause managed to get the Supreme Court involved in her case. For those who’ve followed the court’s sycophantic attitude toward religion in recent years, it’s not surprising that it found a way to hand Sause a victory.
It wasn’t easy.
For the past thousand years or so of litigation under the common law, the fundamental requirement for bringing a civil complaint has remained essentially the same. If you’re going to take up a court’s time in deciding whether or not it should relieve a defendant of money, you need to describe clearly what happened, and state exactly why under the law you think those facts entitle you to relief. You cannot put the court in the position of the bewildered parents who cannot figure out why their infant is crying.
Unless, the Supreme Court now says, your complaint involves religion.
In a per curiam order, the court frets that it’s not clear from Sause’s complaint whether the officers were in her home because she consented to let them in or whether they were there illegally. If they were there illegally, the court says it might raise implications under the Fourth Amendment, or under some abstruse, heretofore undocumented interplay between the First Amendment and the Fourth. Never mind that the plaintiff’s appeal made no complaint that the Fourth Amendment had been violated (most likely, because she knew it hadn’t). According to the justices, it was up to the Kansas court, not up to the plaintiff, to ransack the precedents to see if there were any possible grounds on which she could prevail, whether or not she bothered to mention them in her filing. “Petitioner’s complaint contains no express allegations on these matters. Nor does her complaint state what, if anything, the officers wanted her to do at the time when she was allegedly told to stop praying. Without knowing the answers to these questions, it is impossible to analyze petitioner’s free exercise claim.”
The court never mentions the officers’ “qualified immunity” defense, that “Sause must demonstrate that any reasonable officer would have known this behavior violated the First Amendment”—most likely because it can’t. There is no statute or case precedent anywhere stating a “clear standard” on dealing with someone who insists on praying rather than answering the police. That doesn’t matter to the court. The only thing that matters is that religion wins.
When you take this case together with the recent Masterpiece Cakeshop decision in which the religious defendant was let off because two of the seven adjudicators on one of four panels expressed insufficient deference to religion and following on the heels of last year’s Trinity Lutheran case invalidating the constitutions of thirty-eight states; the Hobby Lobby case letting religious employers dump their healthcare costs onto the government; the Little Sisters of the Poor case holding that filling out a form of no legal effect whatsoever is a terrible affront to conscience; the Holt case allowing a religious prisoner to thumb his nose at neutral prison safety rules; and the Town of Greece case in which all nine justices firmly endorsed the idea of prayer before public meetings, you see a court in which religion wins every time.
There’s one important lesson everyone can draw from Mary Anne Sause’s case. If you ever get in trouble—for a speeding ticket, a tax audit, or just for having too much fun—don’t forget to drop to your knees and pray. Pray as hard as you can, as long as you can. There is more power in prayer than you ever imagined.