Church is not an option

[Christopher Lund]

I wonder if the plaintiff's lawyer should change tactics and just argue
this as a straightforward case of religious discrimination.  Who cares
whether the plaintiff has a "right" under the Free Speech / Free Ex
Clauses to say what he said?  The state fired him here, in violation of
their own procedures, for a palpably absurd reason.  Why not just
litigate this as a pretext case?


Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)

>>> stcynic at crystalauto.com 8/19/2007 12:14 PM >>>
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.