Blog from the Capital

In 2001, Daniel Berry worked for the Department of Social Services in Tahoma County, California. His office cubicle and his job brought him into regular contact with clients. He is also a very religious man. So he was offended when told by his superiors that he could not continue speaking about religious matters to clients, could not display his Bible and religious artifacts on his desk, and couldn't conduct prayer sessions in the conference room. He filed suit, claiming violation of his free speech and free exercise rights. The 9th Circuit Court of Appeals today agreed with a lower court that his suit should be dismissed. They seem to note the extremely difficult position government offices are in, trying to negotiate "the Scylla of not respecting its employee’s right to the free exercise of his religion and the Charybdis of violating the Establishment Clause of the First Amendment by appearing to endorse religion."

Mr. Berry contends that his speech is protected under the First Amendment as religious speech, rather than as comments upon matters of public concern. Nonetheless, we conclude that the Pickering balancing approach applies regardless of the reason an employee believes his or her speech is constitutionally protected. Mr. Berry, of course, is entitled to seek the greatest latitude possible for expressing his religious beliefs at work. The Department, however, must run the gauntlet of either being sued for not respecting an employee’s rights under the Free Exercise and Free Speech clauses of the First Amendment or being sued for violating the Establishment Clause of the First Amendment by appearing to endorse its employee’s religious expression. The Pickering balancing test recognizes these important, but sometimes competing, concerns and allows a public employer to navigate a safe course.

Pickering v. Board of Education is the 1968 decision in which the Court established a 2-part test in considering religious expression by public employees; namely: 1) Is the employee speech a matter of public concern? and 2) if so, do the employee speech rights outweigh the employer's need to operate an effective workplace.