Church is not an option

[Ed Brayton]

It's even worse than that, Mark. The ruling says there was no policy of
prohibiting mention of religious bereavement counseling options. In fact, it
says that what he said did not violate any guideline or procedure at all.
Given that, I think the free speech claim is still alive and should have
been heard by the district court. Yes, there is a distinction between speech
on a public matter and speech on a private matter in Pickering, but even
with speech on a private matter I don't see how it could possibly be
acceptable for a government employer to fire an employee for private speech
that is not in violation of any guideline and for which there is not some
compelling reason for the firing. I think the free speech claim is stronger
than the free exercise claim. 
 
And I'm inclined to agree with Christopher Lund that the firing had more to
do with this mysterious first incident referred to, but even if it was I
don't see a strong defense. The second incident was not an incident at all.
I don't see how one could make a reasonable case that he did anything wrong
at all. Offering church as one of many places a patient might find a
bereavement group to a patient that has expressed a religious preference is
in no way inappropriate in this situation. So even if there was a first
incident, if the alleged second incident is no incident at all, I still
don't see how that is a compelling defense - they've simply invented a
second reason to fire him. If the first incident was serious enough, they
should have fired him for that.
 
Ed Brayton
 
-----Original Message-----
From: Scarberry, Mark [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf
Of Scarberry, Mark
Sent: Sunday, August 19, 2007 12:26 PM
To: Law & Religion issues for Law Academics
Subject: RE: Church is not an option


The analyses in the various opinions puzzle me. Assuming the policy of
prohibiting mention of religious bereavement counseling options was set up
by a state actor, why doesn't that policy violate the Establishment Clause?
It's principal effect seems to be to inhibit religion. Here the client had
indicated a religious commitment; to require the employee/student to ignore
that information and to not even mention the possibility of religious
bereavement counseling is actively hostile to religion. In effect it sets up
a secular orthodoxy in dealing with a matter that for thousands of years has
been an important part of religious practice.
 
If the policy is impermissible under the Establishment Clause, then
Pickering test would not be applicable with respect to disciplining the
employee/student for violation of the policy; perhaps it would be better to
say that there would be no need to discuss the employee/student's Free
Speech rights, and thus Pickering would be irrelevant. In addition, all the
discussion about whether the employee/student had a religious belief
requiring that he mention the religious bereavement option would be
unnecessary, because there would be no need to engage in a Free Exercise
analysis.
 
Mark Scarberry
Pepperdine

  _____  

From: religionlaw-bounces at lists.ucla.edu on behalf of Joel Sogol
Sent: Fri 8/17/2007 12:07 PM
To: religionlaw at lists.ucla.edu
Subject: Church is not an option



Student dismissed from practicum for recommending church as an option for
bereavement counseling?

 

http://www.ca11. <http://www.ca11.uscourts.gov/opinions/ops/200513852.pdf>
uscourts.gov/opinions/ops/200513852.pdf

 

 

Joel L. Sogol

811 21st Ave.

Tuscaloosa, ALabama  35401

ph (205) 345-0966

fx (205) 345-0971

email:  jlsatty at wwisp.com

 

Ben Franklin observed that truth wins a fair fight - which is why we have
evidence rules in U.S. courts.

 

 

-------------- next part --------------
A non-text attachment was scrubbed...
Name: winmail.dat
Type: application/ms-tnef
Size: 7336 bytes
Desc: not available
Url : http://lists.ucla.edu/pipermail/religionlaw/attachments/20070819/d196667d/attachment.bin