There is a lot of talk lately about the First Amendment. A lot of it centers on the misplaced preoccupation with “separation of church and state”. We throw the term around as loosely as a poorly packed cow pie on a wet day, assuming that the reference carries great weight with its intended audience. But like the assumption that an ancient coin bearing an image of Caesar belongs to Caesar, we often fail to consider what lies on the other side of the coin.
The First Amendment states that:
“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.”
Curiously, the term “separation of church and state” does not appear anywhere in the Constitution, much less the First Amendment.
With respect to issues of religion, there are two differing interests in the First Amendment: the Establishment Clause (“Congress shall make no law respecting an establishment of religion …”), and the Free Exercise of Religion Clause (“Congress shall make no law … prohibiting the free exercise [of religion]”). Both clauses were originally intended by our nation’s founders to protect the individual’s right to exercise religion of choice, while prohibiting Congress from adopting an official government religion. Had separation of church and state been a concern, the founders would have said so. Except for the prohibition on Congress, they didn’t.
The individual’s right to worship freely, and to communicate those beliefs, was limited only by a compelling governmental interest that justified limiting individual rights. The challenges that would forever after be raised in that balancing of interests would make any Constitutional Law attorney’s cash register sing out for joy.
Take, for instance, the case of Draper v. Logan County Pub. Library, 403 F. Supp. 2d 608 (W.D. Ky. 2005). Kimberly Draper was a librarian in the Logan County Public Library. On occasion, she had the audacity to wear religious jewelry that included crosses, or religious T-shirts. In its efforts to impose its twisted view of separation of church and state on Ms. Draper, the Library enforced its dress code on her prohibiting clothing depicting religious, political, or potentially offensive decoration. In particular, the Library Director ordered her to remove a cross that she was wearing. When she refused, Draper was summarily fired.
Draper’s right under the Free Exercise Clause to wear the cross, and the Library’s intent to eliminate religious speech by its employees met head-on.
For Draper to prevail, she had to establish that:
(1) she was engaged in a constitutionally protected activity; (2) that the defendant’s adverse action caused her to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the adverse action was motivated at least in part as a response to the exercise of her constitutional rights. Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.2002) (quoting Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir.2000)) (alterations in original).
To prove that she was engaged in a constitutionally protected activity, her actions had to fall within constitutionally protected conduct known as “expressive conduct” or “symbolic speech”. In other words, by wearing a cross, she had to have intended to convey a particular message that would have a great likelihood of being understood by those who saw it as carrying her intended message. Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Second, Ms. Draper had to show that her conduct touched on a matter of public concern. Cockrel, 270 F.3d at 1048.
Once she met those requirements, the burden shifted to the government to demonstrate that her interest in speaking on this matter was outweighed by its interest in promoting the efficiency of its public services. (quoting Leary, 228 F.3d at 737); see Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987).
In holding in favor of Ms. Draper, the Court ruled that:
In determining whether contested speech addresses a matter of public concern, a reviewing court must question “the extent to which the speech advances an idea transcending personal interest or opinion which impacts our social and/or political lives.” Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1189 (6th Cir.1995). Thus, speech that can “be fairly considered as relating to any matter of political, social, or other concern to the community” is protected, while speech involving matters “only of personal interest” is not. Cockrel, 270 F.3d at 1052 (citing Connick, 461 U.S. at 149-49, 103 S.Ct. 1684)….The phrase “public concern,” does “not mean matters of trancendent importance, such as the origins of the universe or the merits of constitutional monarchy; [it] mean[s] matters in which the public might be interested, as distinct from wholly personal grievances . . . and casual chit-chat.” Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d 194, 197 (7th Cir.1996).
Query, then, how jurisprudence could justify a nearly opposite holding in Daniels v. City of Arlington, Texas, 246 F.3d 500 (5th Cir.2001), in which a police officer’s act of wearing a small gold cross pin on his uniform was admittedly a symbolic [expression] of his religious beliefs — but intensely personal in nature, and did not constitute a matter of “public concern”.
Kimberly Draper’s cross was a matter of public interest. Officer Daniels’ cross was not.
The tortured reasoning behind the denial of Officer Daniels’ right to wear a cross suggests that courts will always find a way to do whatever they want to do. More’s the pity.
If the Constitution is our only protection from the abuses of government, and if those protections can be discarded like yesterday’s cheese, we live in imminent peril.
Nelson Mandela wrote: “When a man is denied the right to live the life he believes in, he has no choice but to become an outlaw.”
It may be time to break out the spurs.
Copyright © 2014 Gregory D. Lucas