The implications of 9-11 on free exercise.

[Michael D. Dean]

I would like to return one last time to the free exercise significance of both the original post and Prof. Jamar's challenge whether "non-believers are damned" religions are "intolerant." I understood both the post and the challenge to imply that horrific acts of "true believers" and the repugnance of particular beliefs to courts and tribunals may affect how free exercise defenses are treated.

My apologies if I understood either of those posts incorrectly, but I have spent a good deal of time defending holders "intolerant" views, and my own experience is that they are, in fact, treated differently in light of "evolving standards of decency" (to borrow a phrase from different 1st and 8th Amendment contexts).

One example. I recently defended a government employee who was a "fundamentalist" Christian and an outspoken critic of homosexuals as sinful. He was terminated for insubordination and for creating a "hostile work environment" when he stated publicly that his lesbian superior had engaged in illegal favoritism by promoting a lesbian friend on the basis of sexual orientation and by overlooking her physical assault of a co-worker which was caught by a TV reporter on videotape.

In applying the Pickering balance, the personnel commission ruled, and a reviewing court agreed, that the objective truth of my client's speech was irrelevant in weighing its value against the government's need to maintain discipline and morale. The PC sua sponte excluded the videotape from evidence and even refused to view it as an offer of proof that the assault had occurred. They also excluded expert testimony of two nationally recognized witnesses that the superior had, in fact, engaged in flagrant favoritism in both the promotion and assault situations.

In contrast, imagine that a white male superior terminated a black female subordinate for accusing him of promoting a friend based on race and gender and for covering up the friend's assault on a black female. It is inconceivable that a court or tribunal would terminate the subordinate for creating a hostile work environment for white males while excluding evidence that the superior was, in fact, illegally discriminating based on race and gender and covering up the assault.

It would certainly be legitimate to argue that, after balancing the competing interests, my client should be terminated for the manner in which he made his remarks, regardless of their truth. But excluding truth of my client's statements altogether struck me as an egregious double standard imposed for no other reason than that the PC and court considered his views "intolerant."

Our legal history is replete with double standards imposed against communists, blacks, union organizers, Catholics, Irish, Chinese, Japanese, southern Europeans, or whoever else media and popular culture perceive as the "devil du jour." At the risk of sounding too cynical, I believe it is the deliberate intention of many politicians, "sound bite" journalists, and assorted "activists" to create such devils.

I issued my original post because it seemed to me that "fundamentalists" may be the latest popular devil. The ensuing exchanges illustrate that, to some degree, everyone has the same fear for some group or other. Even though the scrupulous even-handedness I suggested is impossible to achieve completely (at least in my own case), it still seems in order to strive for it.

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