Joe, a veteran and avowed
atheist (turns out there ARE some atheists in foxholes), goes for his yearly
physical at the local Veterans Administration-run medical clinic. He’s escorted
to one of the exam rooms, where medical technician and devout Catholic Tammy
takes his blood pressure and medical history prior to the doctor’s arrival.
While Joe is not surprised
to see that Tammy wears a crucifix necklace, he IS surprised to note that Tammy
keeps an open Bible on the counter in the room.
Joe casually mentions to
Tammy that he played golf yesterday with another doctor in town. Tammy says,
“He’s a nice man, but I can’t condone his lifestyle. He prescribes birth
control, which is clearly a sin.”
After Joe leaves the clinic,
he grows more annoyed at Tammy’s unsolicited dig at his friend. He didn’t ask
for her opinion and thinks it’s inappropriate that she foisted her
Catholic-inspired opinion on him in a professional setting. Further, while he’s
not crazy about the crucifix, he feels that the open Bible crosses a line.
That evening, he tells his
wife that he plans to complain to the V.A. His wife responds: “It’s a free
country! Tammy’s got freedom of speech and freedom of religion. The First
Amendment says so!”
Is Joe’s wife right? Does
the First Amendment guarantee Tammy’s right to say and do what she wants at
work?
First things first: We try
to find the answer in the plain language of the statute:
Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances U.S. Const. amend. I
Well, when you put it that
way…
Note the first words:
“Congress shall make no law….” So… the First Amendment applies only to acts of
Congress. This means that, if we’re not talking about a government action, the
First Amendment is not triggered at all.
It’s important to understand
that “Congress” has been interpreted to include not only laws passed by the
federal government, but to the actions of state and local governments as well.
(The 14th Amendment applies the federal Constitution to the states.)
Also, subsequent Supreme Court cases have held that—in some very narrow
instances--some non-government entities are considered to be “the government”
for Constitutional purposes. In other words, a private company or citizen CAN
violate a person’s First Amendment rights only if the private company or
citizen is:
1)
Serving a public function typically performed only by the government (a company
town won’t allow residents to peaceably assemble) OR
2)
Working with the government where the state is so heavily involved in the
private activities that the state and the private actor essentially become one
(state public housing project contracts with a property management company that
refuses to rent to Hispanics)
Fun
side note: Because I work for the government, I’m a state actor during the day
and a private actor at night. Sometimes for fun, I jump in and out the door of
my office and yell: “State actor inside! Private actor outside!” (Not really.)
So
where does this leave Joe and Tammy?
Can
Tammy’s employer forbid her to wear a crucifix to work? Can her employer forbid
her to keep an open Bible on the counter? Can Tammy’s employer forbid her to
offer her opinion of Joe’s friend’s lifestyle? Is Tammy, as an agent of the
federal government, violating the First Amendment’s Establishment Clause? In
other words, do her open Bible and religious comments mean that her government
employer is promoting Catholicism?
Tammy
is an employee of the federal government. She works for the V.A., so there’s no
need to wonder if we have a government actor here. Still, even if we agree that
the V.A. is a government actor here, it doesn’t seem possible that an employer
(even a government employer) can’t tell its employees what to do.
Tammy’s
freedom of speech
A
government employer can restrict an employee’s speech unless the employee is
commenting on a public concern UNLESS the speech would disrupt the employer’s
business so much that it would outweigh the employee’s right to freedom of
speech. (See Pickering v. Board of
Education, 391 U.S. 563 (1968) Stated another way, we’re balancing the harm
of the statement with the public’s need to hear the statement. Tammy’s
statement that Joe’s doctor friend is sinning when he prescribes birth control
seems to be of little public interest, and the public’s need to hear this
statement is not outweighed by the harm (alienating a patient, for one thing).
Tammy’s employer can restrict her speech.
Tammy’s
freedom of religion
A
government employee has the right to express his or her faith so long as it
does not interfere with her work setting. (Draper
v.Logan Cnty. Pub. Library, 403 F. Supp.2d 608) Tammy can wear her
crucifix, but the open Bible might be seen as too disruptive to her work.
Certainly, her comments regarding Joe’s doctor friend would be seen as
disruptive. Also, it’s unlikely that Tammy’s comments regarding sin and birth
control would be construed as a protected exercise of her religion. (Her
religious rituals do not include offering Bible interpretations at work.)
Tammy’s
establishment of a religion
A
government employer can prohibit religious expression when a reasonable person
would view the expression as the government’s endorsement of religion (Logan, again). Certainly, no reasonable
person would interpret Tammy’s personal jewelry as the V.A.’s encouragement of
Catholicism. On the other hand, I think a reasonable person could see the open
Bible in the exam room or an employee’s statements as V.A.-sponsored religious
expression—particularly the open Bible.
I think Joe has some pretty strong grounds for complaints
here. What do you think?
