In Tehama County, California, a social services department employee tried to argue that the government should accommodate his belief that his religion required him to share his faith his other employees and clients coming to him. The 9th Circuit Court disagreed, and quite rightly too, noting that the government can't be seen promoting religion in this manner.

The Sacramento Bee reports on the unanimous 3-judge ruling:

On balance, said the 9th U.S. Circuit Court of Appeals, the constitutional duty of the Tehama County agency to avoid entangling itself in religion outweighs the constitutional right of Daniel M. Berry to promote his religious views.

Judge Consuelo Callahan said, “The department’s clients seek assistance from Mr. Berry in his capacity as an agent of the state. Accordingly, they may be motivated to seek ways of ingratiating themselves with Mr. Berry, or conversely, they may seek reasons to explain a perceived failure to assist them. It follows that any discussion by Mr. Berry of his religion runs a real danger of entangling the department with religion. This danger is heightened by Mr. Berry’s admission that unless restricted, he will share his faith with others and pray with them.”

It’s almost an article of faith for the Christian Right that someone like Berry should be able to act as he wanted — that’s why U.S. Equal Employment Opportunity Commission supported his lawsuit. The truth, however, is that government employees are restricted in what they can do when they are acting as representatives of the government. Berry could no more justifiably evangelize clients than a police officer can evangelize someone he’s stopped for speeding — that’s because, when acting as representatives of the state, their speech and actions represent the government.

The right to free speech is a personal one and applies when one is acting as a private citizen, not when they are acting as an officer of the county, city, or state. A police officer or other government employee can proselytize all they want on their own time and when not acting on behalf of the state.

 

Update: Steve Doetsch writes in the comments that “government employees are explicitly unrestricted in the free exercise of their religion when they are acting as representatives of the government according to amendment one of the constitution,” but that is untrue, as I explain above. It’s a lie of the Christian Right to claim that government employees have no restrictions on how they act when performing their duties. A police officer proselytizing when handing out a ticket is, in effect, government proselytization — and the same is true of any other government employee acting in their official duties.

A government employee does, in fact, give up some of their rights when they are “on the job.” This is because, when on the job, they are representing the government. There is no “government” apart from people, after all. This means that a ban on the government doing something is, necessarily, a ban on people doing something — specifically, the people acting in their official duties as government employees.

A ban on the government proselytizing to people isn’t a ban on me proselytizing, because I have nothing to do with the government. It isn’t a ban on a person going door-to-door in their free time to hand out Bibles, because this person is acting as a private citizen. To mean anything, a ban on the government proselytizing must apply to agents of the government performing their official duties: police officers handing out tickets, judges handing down decisions, postal workers delivering mail, social services employees processing your information, and so forth.

None of these people can proselytize to you when they are acting in their official capacity because, when acting in their official capacity, they are in a sense “the government.” If a person feels that they have been discriminated against by Berry on the basis of religion, and they can prove that Berry proselytizes to citizens seeking assistance from him, then they will have a good case and in the end it’s the government that will have to pay if the lawsuit is successful. The government has a compelling interest not to promote any religion, not to be perceived as promoting religion, and to avoid situations which might lead to successful lawsuits for unconstitutional activity.

This isn’t a total ban on all free exercise of religion while on the job, because not every way that a person might exercise their religion will cause problems for citizens seeking services or other employees just trying to do their jobs. A government employee can, for example, wear a cross necklace or have a Bible in their cubicle. There are, however, lines which they cannot cross.

The idea that they are completely unrestricted in what they can do, as if they were private citizens acting on their own time, is absurd — as well as contradicted by both law and court decisions. The Pickering decision, for example, states clearly that “State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Pickering was reaffirmed in City of San Diego v. Roe, where the Court held that there must be a balance between “the employee’s right to engage in speech and the government employer’s right to protect its own legitimate interests in performing its mission.”

More: Contrary to what Steve thinks, the First Amendment applies to all official, binding government actions, not just to laws passed by Congress (thus it applies to acts like regulations, but not to acts like non-binding resolutions). This is as much a part of established case law as the fact that government employees are restricted in what they can say and do while performing their official duties. No matter how much hand waving he engages in, he can't change what the laws and legal precedents state - and what they state, unambiguously, is that his "interpretation" of the Constitution is wrong. If he wants to make a case for why he's right, he can start a site somewhere and try, but I won't hold my breath. He doesn't even seem to be aware of the laws and cases involved in these issue, much less able to discuss them in a substantive manner.

It should be noted that, unlike Steve Doetsch, Berry and his attorneys did not challenge the constitutionality of any of this. My reading of the final decision is that they did not argue that government employees should be as unrestricted in their exercise of free speech and religious rights when acting in their official capacity as they are when acting as private citizens. Instead, they simply argued that test for whether or not the line has been crossed should be narrow - narrower than courts usually make such tests. All levels of the judiciary disagreed and instead applied the broader tests that have generally been used. Thus, Berry lost not because the courts adopted principles which he disagreed with, but because those principles were applied more broadly than he agreed with. The ideas being offered by Steve Doetsch here are, to the best of my knowledge, positions accepted by no one involved with constitutional law. It doesn't even qualify as a "fringe" position.

Once Again: Steve Doetsch doesn't argue for his claims, he just makes claims. He doesn't display any knowledge of the issues, he merely offers grandiose statements about his opinions. That's called hand waving and it isn't the least bit original.

I have to wonder why such an "original" thinker only manages to publish his "scholarship" in the comments here...

 

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