Axson-Flynn v. Johnson, 2:00-CV-00033C.

Decision Date03 August 2001
Docket NumberNo. 2:00-CV-00033C.,2:00-CV-00033C.
Citation151 F.Supp.2d 1326
PartiesChristina AXSON-FLYNN, Plaintiff, v. Xan JOHNSON, Sandy Shotwell, Sarah Shippobotham, Barbara Smith, Jerry Gardner, and John Does 1-20, Defendants.
CourtU.S. District Court — District of Utah

James W. McConkie, III, Bradley H. Parker, Elizabeth A. Clark, Parker & McConkie, Salt Lake City, UT, Steffen N. Johnson, Mayer Brown & Platt, Chicago, IL, for plaintiff.

Peggy E. Stone, Alain C. Balmanno, Utah Attorney General's Office Litigation Unit, Elizabeth King Burgess, Clawson Burgess LLC, Salt Lake City, UT, for defendants.


CAMPBELL, District Judge.

This case involves the scope of First Amendment protections of the Free Exercise of Religion and Free Speech. Plaintiff's suit, brought under 42 U.S.C. § 1983, rests on the contention that Defendants' Acting Program curricular requirements that she use language that she found objectionable amount to a constitutionally impermissible infringement of her rights to Free Exercise and Free Speech. This matter is before the court on Defendants' motion for summary judgment. For their part, Defendants argue that Plaintiff's Free Exercise and Free Speech claims fail as a matter of law. Defendants further argue that Plaintiff's Hybrid Rights claim also fails as a matter of law, and that, if any of these claims do not fail as a matter of law, Defendants are nevertheless entitled to qualified immunity.

For the reasons set forth below, Defendants' motion is GRANTED.


For the purposes of their summary judgment motion, Defendants have accepted Plaintiff's alleged facts as undisputed and therefore the court will recount the facts accordingly. (See Def.'s Reply to Pl.'s Mem. in Opp. to Def's Mot. for Summ. J. at ii.)

In 1998, Christina Axson-Flynn ("Axson-Flynn" or "Plaintiff"), a member of The Church of Jesus Christ of Latter-day Saints ("LDS" or "Mormon" herein), applied for and was accepted into the Actor Training Program ("ATP") at the University of Utah. Before her acceptance, Plaintiff attended an audition conducted by Defendants Barbara Smith, Sandra Shotwell, Jerry Gardner, and Sarah Shippobotham (collectively "Defendants"), instructors in the ATP program. At the audition, Plaintiff was asked if there was anything she was uncomfortable doing as an actor. In reply, Plaintiff informed the Defendants that she would not take her clothes off, take the name of God or Christ in vain (i.e. using those words as profanity), or say the word "fuck."

Although it is not clear from the record whether she told her instructors the reason for her objections at the time, Axson-Flynn subsequently explained that her refusal to use the words "God" or "Christ" as profanity is based on one of the Ten Commandments, which prohibits believers from taking "the name of the Lord thy God in vain ...." Exodus 20:8. Plaintiff has also explained that her refusal to say the word "fuck" is due to the fact that it is religiously offensive to her because she finds that it vulgarizes what Plaintiff, as a Mormon, believes is a sacred act, appropriate only within the bounds of marriage.

Subsequent to her matriculation, many of the Defendants (except Gardner, who plaintiff has dropped from this action) apparently suggested that she "get over" her objection to using the language outlined above because not doing so would stunt her development as an actor. Defendants apparently believe, and include as a central tenet of the ATP, that it is an essential part of an actor straining to take on difficult roles, roles which sometime make actors uncomfortable and challenge their perspective.

Nevertheless, while participating in the program, Plaintiff omitted-without approval of or notice by her instructor-words and phrases that she found objectionable from one of her required performances and still received a high grade. However, when Plaintiff's professor, Defendant Smith, discovered the fact that Plaintiff had omitted the language in her earlier performance, she pressed Plaintiff even harder to use the language that Plaintiff found offensive. Ultimately, because she refused to use the language, on at least one assignment Plaintiff received a lower grade and was told that her grades would be lowered if she refused to comply with curricular requirements in the future. For the rest of that semester, however, Defendant Smith apparently acquiesced and allowed Plaintiff to omit the language that Plaintiff found offensive from her performances for that class.

At the end of her first semester, Plaintiff attended her oral semester review. At that review, Defendants Smith, Shippobotham, and Shotwell confronted Plaintiff about her refusal to use the language that she found offensive and told her that she would "no longer be given an allowance on language." They also suggested that she would have to find another place to study acting if she did not modify her stance on the use of such language. In response to the comments at her review, Plaintiff took her concerns to Defendant Xan Johnson, the ATP's coordinator, but Johnson informed her that he supported the other Defendants' position on the matter.

At the beginning of her second semester, Defendants Shotwell, Smith, and Shippobotham again suggested that Plaintiff participate as required in the program, using the language that she found offensive. Plaintiff, wishing to be certain of ATP's position on the matter, then went to talk with Defendant Shotwell, the program's director. Shotwell informed Plaintiff that the ATP would not change its position. In response, Plaintiff, while not asked to leave the program, left before the end of her second semester, apparently believing that it was a foregone conclusion that she would be forced to leave the ATP.


The United States Supreme Court has held that the "first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of a right secured by the Constitution and laws" and that the subsequent inquiry requires that such deprivation occur under color of state law. Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) (internal quotations omitted); see also Gunkel v. City of Emporia, 835 F.2d 1302, 1303 (10th Cir.1987). The rights at issue in this case are the First Amendment protections to Free Exercise of Religion and Free Speech. Plaintiff's § 1983 suit rests on the contention that Defendants' curriculum, which required her to use language that she found objectionable, deprived her of her rights of Free Exercise of Religion and Free Speech.

Conceding that they are state actors, Defendants seek summary judgment in this case, arguing that Plaintiff's Free Exercise and Free Speech claims fail as a matter of law. Defendants further argue that Plaintiff's Hybrid Rights claim (an apparent subspecies of a Free Exercise cause of action) also fails as a matter of law, and that, if any of these claims do not fail as a matter of law, Defendants are nevertheless entitled to qualified immunity. After outlining the proper standard of review, the court addresses each of these assertions in order.

A. Standard of Review

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The party seeking summary judgment bears the initial burden of demonstrating that there is an absence of evidence to support the non-moving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In applying this standard, the court must construe all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1552 (10th Cir.1997).

Once the moving party has carried its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by ... affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)); see also Gonzales v. Millers Cas. Ins. Co., 923 F.2d 1417, 1419 (10th Cir.1991). The non-moving party must set forth specific facts showing a genuine issue for trial; mere allegations and references to the pleadings will not suffice. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Free Exercise

The First Amendment to the United States Constitution provides, in part, that Congress shall make no law "prohibiting the free exercise" of religion. U.S. Const. amend I. As with all guarantees of the First Amendment, the Free Exercise clause applies to state and local governments by incorporation through the Fourteenth Amendment to the United States Constitution. See Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Plaintiff's Free Exercise claim squarely confronts the central tension in Free Exercise jurisprudence-for this is a case in which acting in accordance with a facially neutral policy incidentally directs a citizen to act counter to her religious beliefs. Put bluntly, Plaintiff, a Christian, was instructed, even if indirectly, to break the Second Commandment in order to conform to the facially neutral and generally applicable policies of the University of Utah's ATP curriculum. Indeed, this case involves the tenuous balance between the rule of law and the rule of conscience, a balance upon which civil society necessarily depends. With respect to this conflict, the Supreme Court has noted that the determination of the propriety and necessity of accommodating religious exercise is one made by the political...

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2 cases
  • Axson-Flynn v. Johnson
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • February 3, 2004
    ...vulgarizes what Plaintiff, as a Mormon, believes is a sacred act, appropriate only within the bounds of marriage. Axson-Flynn v. Johnson, 151 F.Supp.2d 1326, 1328 (D.Utah 2001). At the audition, after challenging Axson-Flynn's refusal to say "fuck" by giving several examples of when it migh......
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    ... ... The primary issues are: (i) whether Defendant Miguel Bolivar's new counsel, Erlinda Johnson, has an actual or serious potential conflict of interest in this case; and (ii) if so, whether that ... ...
2 books & journal articles
  • Frederick Mark Gedicks, the United States
    • United States
    • Emory University School of Law Emory International Law Reviews No. 19-2, March 2005
    • Invalid date
    ...57 N.Y.U. ANN. SURV. AM. L. 119, 119-20 (2000) (calling the Hybrid Rights Exception "unintelligible"); e.g., Axson-Flynn v. Johnson, 151 F. Supp. 2d 1326, 1339, 1341, 1342 (D. Utah 2001) (recognizing the Hybrid Rights Exception, but holding that the scrutiny level it requires is only a "mor......
  • Free Exercise and Individualized Exemptions: Herein of Smith, Sherbert, Hogwarts, and Religious Liberty
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 83, 2021
    • Invalid date
    ...Id. at 1281. 100. Id. 101. Id. 102. Id. 103. Id. 104. Id. at 1282. 105. Id. 106. Id. 107. Id. at 1282-83. 108. Axson-Flynn v. Johnson, 151 F. Supp. 2d 1326 (D. Utah 2001). 109. Axson-Flynn, 356 F.3d at 1299. 110. The Tenth Circuit held that there was a genuine issue of material fact about w......

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