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January/February 2012

Discover more articles from this issue.

Say Nothing

The result of your fifty or sixty years of religious reading in the four words "Be just and good" is that in which all our inquiries must end. . . . My...

Faith in Works

Faith in Works

Religion and the Schools

In its 1952 Zorach v. Clauson ruling, the U.S. Supreme Court said it is constitutionally permissible for public school children to participate in...

The Third Party Interest

With the rhetoric and rancor rising in the campaign for the White House, the election has increasingly become a call to the faithful, with candidates...

Freedom With a Catch

It has long been a societal proposition that public education is designed to provide peoples of all socioeconomic, racial, and religious backgrounds with...

Reflections on the First Freedom

You don't have to believe in American "exceptionalism" to recognize that in the way it handles church-state matters the United States of America has made a...

Liberty for All

The United States, a demographically Christian nation, grants non-Christians the right to worship as they please. Religious conservatives, who often assert...

Promises Kept

Early in 2011 Prime Minister Stephen Harper announced that a reelected Conservative government would create an Office of Religious Freedom to ensure that...

A Duty to Defend

A key priority for our government [is] establishing an Office of Religious Freedom. We announced our intention to do so in the Speech from the Throne on...

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Published in the January/February 2012 Magazine
by John E. Ferguson, Jr.

Perhaps no area in society exacerbates the internal tension in the First Amendment between the establishment clause and the free exercise clause than they public workplace. Disputes over religious expression in the public workplace present a constitutional clash between two First Amendment rights: (1) freedom of speech and religion and (2) church-state separation. Consider the following example: a government worker expresses their religious faith on the job to coemployees and patrons. The worker claims that they have a First Amendment right to freedom of speech and to freely exercise their religious faith. The employer counters that it must ensure that the government is not seen as endorsing religion.

Religious expression in the public workplace has become a contentious issue. Many of the cases involve employees' wearing of religious clothing or items. Others involve employees speaking about their religious faith on the job. Recent examples of litigation over religious expression in the public workforce include:

  • A police officer claims his First Amendment rights were violated when he was forced to remove a religious pin from his uniform.1
  • Correctional department employees assert they have the right to read their Bible silently as a way to protest a mandatory training seminar entitled "Gays and Lesbians in the Workplace."2
  • A nurse consultant and sign language interpreter claim they should not receive reprimands for proselytizing on the job with clients.3

Government employees who believe they have been punished for their religious expression can make a claim under the First Amendment and Title VII of the Civil Rights Act of 1964, the major federal antidiscrimination law.4 Additionally the Religious Freedom Restoration Act of 1997 may protect federal employees. Finally, federal employees in the executive branch are covered by the "White House Guidelines on Religious Exercise and Religious Expression in the Federal Workplace."

While Title VII and the First Amendment remain the two major sources of protection for public employees, this article focuses exclusively on the Constitutional First Amendment issues surrounding religious expression in the government workplace. As one federal appeals court has written, "the first amendment protects at least as much religious activity as Title VII does."5

The First Amendment's free exercise clause provides that the government may not prevent individuals from freely practicing their religious faith. Public employees do not forfeit all of their free exercise rights when they take a government job. If a government employer or workplace rule targets an employee's religious speech and causes a substantial burden on his or her religious faith, it can be justified only if the employer shows a compelling interest. More often employer policies do not intentionally target an employee's religious faith but have an incidental impact.

Traditionally, under free exercise jurisprudence, the government could not substantially burden a public employee's free exercise of religion rights, even if the rule did not specifically target the employee's religious beliefs, unless the government could show that it had a compelling interest to do so.6 However, in 1990 the Supreme Court altered free exercise jurisprudence in its decision in Employment Division v. Smith, in which the Court ruled that the state of Oregon did not violate the First Amendment by denying unemployment compensation to two Native Americans fired from their jobs as drug counselors for their religious use of the hallucinogenic drug peyote.7 The Court determined that if a "neutral, generally applicable law" incidentally impacts religion, the government need only establish that the rule is rational. Several lower courts have extended the Supreme Court's ruling in Smith to rules governing the workplace.

Because of the Smith decision, most public employee religious expression cases are analyzed as free speech cases. In 1968 in Pickering v. Board of Education, the Supreme Court determined that a public high school teacher's First Amendment rights were violated when he was terminated for writing a letter to the editor critical of school administrators.8 The Court determined that it had to balance the employee's right to free speech on matters of public concern against the employer's general interests.

The Pickering test contains two prongs: whether the employee speech touches on a matter of public concern, and whether this employee speech interest trumps the employer's efficiency interests. Many lower courts have applied a Pickering analysis to public employee religious speech cases. One federal appeals court explained: "Pickering dealt with free speech rather than the free exercise of religion, but because the analogy is such a close one, and because we see no essential relevant differences between those rights, we shall endeavor to apply the principles of Pickering to the case at hand."9

Employer Establishment Clause Defenses
In litigation, many public employers assert that they silenced an employee's religious expression to avoid an establishment clause conflict. They argue that allowing employees to speak freely about their religious faith causes the public to believe that the government is sanctioning or endorsing the religious views. Some courts have agreed with these defenses, particularly when the employees proselytize to the public.10 The practice does not have to lead to an actual establishment clause violation. An employer must show that they had a reasonable or plausible fear that the practice would cause the viewing public to believe that the government was endorsing religion. This defense is nothing new to free exercise cases. Not so long ago the 9th Circuit recently allowed a public school district to disallow student graduation speeches because of their religious content.11

How Should This Conflict Be Analyzed?
When the government acts as an employer, it must determine which employee expression they must allow as a result of free exercise and free expression clauses, that expression they are required to prohibit based on the establishment clause, and the middle ground of things they may accommodate but are not constitutionally required to do so. After Smith, the free exercise clause offers little protection for employee speech, and the government frequently invokes the establishment clause to defend its censorship of employee religious speech. While the establishment clause concern is frequently validated by the courts and is certainly important, it is often used in an effort to avoid the effort required to find constitutionally appropriate accommodations.

Thus, how does one balance accommodation of an employee's religious expression while at the same time honoring the establishment clause by restricting that employee from using their government position and authority to promote a particular religion? The balancing of these constitutional interests involves a principled examination of three factors : (1) the type of religious expression, ( 2) the level of contact with the public, and (3) the relationship between speaker and listener.

1 People frequently express their religion through everyday conversation, as well as through jewelry and clothing. Determining the appropriateness of this expression will require a commonsense examination of what message the employee is sending, and what message the average citizen who comes in contact with this person is likely to take away. A public school teacher wearing a small cross pendant is not likely to send the message that the government the teacher represents is promoting Christianity. But if the same teacher were to wear a foot-tall monk's cross or T-shirt with the proselytizing message "Turn or Burn," a different message would be sent. The same standard would apply to a teacher responding to a student's question about their faith. A short answer in an appropriate context would not violate First Amendment principles, while a long speech about the benefits of the teacher's faith probably would. When interacting with government employees, the general public has a certain set of expectations about how these employees will represent the government. These "reasonable person" expectations should be taken into account in this analysis.

2A second concern involves the amount and type of contact the government employee has with the general public. A patrol officer who walks a beat is far more likely to communicate with the general public than a data entry clerk in a back office at the IRS. The patrol officer's extensive contact with the public is also in an environment that is not easily controlled for purposes of education. The back office worker with little or no contact with the public is exposed only to those who work around them, and they can be informed and educated about what is acceptable workplace expression and what such expression means (i.e., that it represents the beliefs of the individual employee and not the state).

3 Finally, the relationship between the speaker and the person receiving the message is important. Internally, differing dynamics exist between employees speaking to one another about religious matters and a supervisor speaking to those supervised about religious matters. The possibility for harassment exists in both instances, and the analysis will closely mirror sexual harassment tests. When engaging the broader public, employers have particularly valid concerns, especially with employees in positions of power or authority. A police officer has the imprimatur not only of the regulatory aspects of the state but also the coercive power of force sanctioned by the state. This power structure also exists between teachers and students, or health-care providers and patients. The possibility of coercion, either intended or merely perceived, is enough to make the courts far more stringent in the application of establishment clause prohibitions.

Courts must engage in a balancing process. The Pickering test provides an appropriate vehicle for such balancing because it is flexible and because courts already have experience applying it to a variety of First Amendment cases, from standard free speech cases to freedom of association cases to freedom of religion cases.

Under this test, the employer's establishment clause test becomes part of the second prong of the Pickering test. In other words, the employer's establishment clause interest becomes a factor that must be balanced against the employee's interest in freedom of expression. The three factors mentioned above—the nature of the expression, the level of interaction with the public, and whether the employee holds a position of power over other employees or the public—would all be relevant factors in the constitutional calculus.

Lower courts have reached differing conclusions when balancing an employee's right to religious expression with an employer's duty not to violate the establishment clause. One legal commentator writes: "In sum, without any guidance from the Supreme Court, many of the federal circuits have applied a version of the Pickering balancing analysis. Circuits have afforded varying levels of deference to the employer's fear of an establishment clause violation, resulting in factually similar cases with dissimilar results."12 An employer should not be able to silence an employee's nondisruptive religious expression.

Clearly this is one area of religious liberty that requires careful examination. Few bright lines exist in a problem with competing constitutional concerns. The result is that government employers will continue to struggle to balance the interests of the employee abiding by their conscience and the government's desire to avoid allowing itself to be used by individuals to promote private religious agendas.

Employers should not restrict all employee religious expression, creating zones of antireligious animus. Shutting down all personal expression at work would lead to an inefficient and psychologically harmful environment for employees. On the other hand, allowing unfettered employee expression could lead to religious harassment and establishment clause violations.

Once those involved look for ways of finding common ground and protecting the rights of all citizens, employees may see that wearing a cross inside their uniform or refraining from contextually inappropriate religious discussions may be the greater acts of fidelity. At the same time, government employers may need to come to terms with the reality that every yarmulke or hijab, angel poster or miniature Buddha, gold cross or silver pentacle, does not represent a per se endorsement of religion by the state, and is part of the reality of a diverse workforce in the twenty-first century.

John E. Ferguson, Jr., and David L. Hudson, Jr., write from Washington, D.C.

1 Daniels v. City of Arlington, 246 F.3d 500 (5th Cir. 2001).
2 Altman v. Minnesota Department of Corrections, 251 F.3d 1199 (8th Cir. 2001).
3 Knight v. State of Connecticut Department of Public Health, 275 F.3d 156 (2nd Cir. 2001).
4 42 U.S.C. 2000(e) et seq.
5 Brown v. Polk County, 61 F.3d 650 (8th Cir. 1995).
6 374 U.S. 398 (1963).
7 494 U.S. 872 (1990).
8 391 U.S. 563 (1968).
9 See Brown v. Polk County at 503.
10 See Quenta, v. State of Connecticut Commission on the Deaf and Hearing Impaired in tandem with Knight v. State of Connecticut Department of Public Health, above.
11 Cole v. Oroville Union High School, 228 F.3d 1092 (9th Cir. 2000); Lassonde v. Pleasanton Unified School District, 2003 U.S. App. LEXIS 2967 (2/19/03)(9th Cir.).
12 Brian Richards, The Boundaries of Religious Speech in the Government Workplace, 1 U. Pa. J. Lab. & Emp. L. 745, 761 (1998).

Author: John E. Ferguson, Jr.

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