Isaiah Brown v. Polk County, Iowa, a Municipal Corporation Ray Sears, Former County Administrator for Polk County Polk County Board of Supervisors

Related Cases

MORRIS SHEPPARD ARNOLD, Circuit Judge,

dissenting in part.

The court holds today that Polk County, Iowa, may lawfully order one of its employees to remove from his office all items that manifest his religious faith and, even more incredibly, may direct him to remove his Bible from his desk drawer. The district court charitably ' characterized this heavy-handedness as “arguably overzealous,” and confessed to being “somewhat troubled” by it. Brown v. Polk County, Iowa, 832 F.Supp. 1305, 1316, 1316 n. 22 (S.D.Iowa 1993). It nevertheless decided that the county’s action was not unconstitutional. The court also holds today that Polk County may lawfully order one of its employees to “cease any activity that could be considered to be religious proselytizing, witnessing, or counseling” in the workplace. I cannot subscribe to these conclusions, nor to this court’s failure to give proper scope and dimension to Mr. Brown’s rights of religious expression.

I.

I believe that it is well established that the right to the free exercise of religion is a fundamental right. See, e.g., Johnson v. Robison, 415 U.S. 361, 375 n. 14, 94 S.Ct. 1160, 1169 n. 14, 39 L.Ed.2d 389 (1974). That being the case, a government must demonstrate a compelling state interest before it can inhibit that exercise. While compelling interests, like beauty, may well lie mainly in the eye of the beholder, one is hard pressed to find such an interest here. The court’s identification of the county’s interest in avoiding a violation of the Establishment Clause violation as sufficiently compelling im-permissibly shifts the fulcrum of neutrality much too far in one direction. It simply is not an establishment of religion to allow individuals to display items of religious significance in their offices, partly because this is not an action on the part of the county (see Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)); and there is not even a colorable argument that a Bible in a desk (even a desk owned by the government) breaches the wall of separation that must be maintained between government and religion. Besides, if it were an establishment of religion merely to allow these kinds of activities, the county would have a complete answer to this lawsuit: It could say that, it was legally compelled to issue the relevant directive, thus rendering it unnecessary to divine some so-called “interest” that the county had at stake.

One might, in the abstract (and in an appropriate case), sympathize with the defendants in the sense that it is not always easy to steer a correct course between the Scylla *412and Charybdis of the Religion Clauses. But the county has not claimed qualified immunity, perhaps because of its blind inability to see any Free Exercise interests whatever at stake here, a position completely, consonant with its unfeeling disregard of Mr. Brown’s rights and of its own duties under the Constitution. Nor do I think that the county could have succeeded if it had claimed qualified immunity. Polk County seems to have been bent on giving government sanction to the attitude that religion is simply out of place at the office. Citizens are certainly free to believe this and, of course, absent statutory regulation to the contrary, to give effect to that principle in their voluntary associations. What they are not free to do is to enlist the aid of government in imposing such restrictions on fellow workers. The conduct of the defendants here seems to me so egregious and obviously illegal as almost to furnish direct evidence of an anti-Christian animus on their part. Mr. Brown, moreover, has asked for a declaratory judgment that the relevant order was unconstitutional, a claim that is, of course, not subject to being defeated by qualified immunity. See, e.g., Wood v. Strickland, 420 U.S. 308, 314-15 n. 6, 95 S.Ct. 992, 996-97 n. 6, 43 L.Ed.2d 214 (1975); Malik v. Brown, 16 F.3d 330, 335 n. 4 (9th Cir.1994); and Mumford v. Zieba, 4 F.3d 429, 435 (6th Cir.1993).

II.

One may concede for the sake of argument that Polk County has a legal right or duty to ensure that its workplace is free from harassing behavior of a religious nature. But any interference with religious activity that the discharge of that duty entails must be reasonably related to that discharge and must be narrowly tailored to its achievement. Thomas v. Review Board of Indiana Employment Sec., 450 U.S. 707, 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981). Here, there was not the least attempt to confine the prohibition to harassing or intimidating speech, or narrowly to define the prohibited activity. Instead, Polk County baldly directed Mr. Brown to “cease any activity that could be considered to be religious proselytizing, witnessing, or counseling” (emphasis supplied). This order, which the court avoids quoting directly, exhibits a hostility to religion by government that our Constitution quite clearly prohibits. It would seem to require no argument'that to forbid speech “that could be considered” religious is not narrowly tailored to the aim of prohibiting harassment. If Mr. Brown asked someone to attend his church, for instance, one supposes that that “could be considered” proselytizing; but its prohibition runs afoul of the Free Exercise Clause. Likewise, a statement to the effect that one’s religion was important in one’s life “could be considered” witnessing; yet for government to forbid it would be unconstitutional.

The court does not directly address these arguments, but seems to indicate that the desire to avoid establishing religion provides a sufficient excuse for a complete prohibition of any activity that “could be considered religious.” As I indicated above, that holding strikes the balance between the Religion Clauses in a way that trenches unconstitutionally on ground occupied by the Free Exercise Clause. Our court recently had occasion to explore the boundary between the two clauses in Good News/Good Sports Club v. School District of the City of Ladue, 28 F.3d 1501 (8th Cir.1994), in which the court held that allowing a religious organization the use of school premises did not amount to an establishment of religion. Id. at 1510. The court concluded that merely permitting someone to express a religious view was not an establishment of religion, noting that “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids; and private speech endorsing religion, which the Free Speech and Free Enterprise Clauses protect.” Id. at 1509 (quoting Westside Community Bd. of Ed. v. Mergens, 496 U.S. 226, 251, 110 S.Ct. 2356, 2372-73, 110 L.Ed.2d 191 (1991)) (plurality opinion by O’Connor, J.). More succinctly, as Justice O’Connor indicated, id. at 250, 110 S.Ct. at 2371-72, “[t]he proposition that [governments] do not endorse everything they fail to censor is not complicated.” Mr. Brown is speaking here, not Polk County.

*413III.

What is most unsettling to me about this case is the antiseptic approach that the court takes to its resolution. It proceeds as though a routine application of an apolitical arithmetic could yield a scientifically ineluctable solution to the dispute that this case presents. Given the modes of constitutional analysis by which the court quite rightly deems itself bound, the court had necessarily to engage in some sort of balancing act to decide the case. So much is clear. (It is, moreover, difficult to think of rights outside a world governed by utility: A right’s usefulness, at least in the abstract welfare economics sense, may well influence the scope that we give to it and the amount of nuisance that we will feel compelled to tolerate from its exercise.) But the tradition that produced our Bill of Rights was one that took rights seriously, and a healthy suspicion of government and a robust respect for individual autonomy were the values that gave that tradition shape and texture. It is this realization, and an unwillingness to act on it, that seems to me to be missing from tbie court’s opinion. After being subjected to “balancing” and “weighing,” the identification of “interests,” and the application of “tests,” Mr. Brown’s rights are simply lost in the shuffle, impaled on some “prong,” and reduced to the level of merely expendable desiderata. They ought instead to be given their proper weight as critical expressions of the proper constitutional boundary between the state and the individual.

I would reverse so much of the district court’s judgment as rejected Mr. Brown’s Free Exercise claims and affirm the other parts of the court’s judgment from which he appeals.