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

FAGG, Circuit Judge,

dissenting, joined by LOKEN, HANSEN, and MURPHY, Circuit Judges.

I dissent from the order denying rehearing en banc.

I would grant Polk County’s suggestion for rehearing en banc. First, Brown’s Title VII claim should be remanded to the district court for development of the record and factual findings under the Price Waterhouse mixed-motives test, which the district court did not apply at trial. The County should be given an opportunity to present evidence about whether it would have fired Brown absent consideration of the group prayers and Brown’s religious statements during departmental meetings. Second, Brown failed to prove the County’s actions substantially burdened his religious practices, an essential element of his free exercise claim. Last, the court’s opinion raises more vexing questions than it answers about a supervisor’s practice of religion on a public employer’s time. Indeed, I believe the court misconstrues First Amendment law in stating the Establishment Clause and the Free Exercise Clause are separated by an “ample and well-defined space” and “cannot ... make conflicting demands on a government.” Brown v. Polk County, Iowa, 61 F.3d 650, 659 (8th Cir.1995) (en banc).