6th Circuit: Diversity Trump's religious freedom

[_Darth J]

Note how even though the Complaint says that her views were motivated by her Christian beliefs, she categorizes her statements as political speech. Paragraph 34:

Public employees do not surrender their First Amendment rights by reason
of their employment. The First Amendment protects a public employee’s right to speak
as a citizen addressing matters of public concern. Plaintiff’s opinion piece in the Toledo
Free Press was political speech, constituting personal expression, and is therefore subject
to the highest degree of First Amendment protection.

This is 100% a free speech case, not a free exercise case.

[_Darth J]

could not agree more, thank you - iahve always considered myself as conquering stupid - getting up and over it....

which puts me right on top of you...planting my pole on the tippy top of your pointed little noggin.

Hey, idiot, when you get a minute, read through that complaint and show me the Title VII claim.

[_Res Ipsa]

I do not think she had to prove the free speech claim to win on the equal protection claim.

If she cannot show an established right being at stake, then there is no equal protection claim. The 14th Amendment guarantees equal protection of law, not simply equal protection of "treatment."

It's been a long time since law school, but doesn't she have to prove either (1) interference with a fundamental right; or (2) membership in a "suspect class?" Looking over the complaint, it looks like she didn't plead suspect class. So, if her first amendment claim fails, so would her 14th amendment claim.

I think what the court did was the typical avoidance of constitutional issues. Even though it had effectively torpedoed her 14th amendment claim by denying her 1st amendment claim, it relied on the narrow grounds of failure to present evidence on a required element of the claim. Not sure it made much sense to do that in this case.

[_Res Ipsa]

I don't see how you get to an equal protection claim without a First Amendment claim in this case. If Dixon had filed suit because she was not allowed to wear blue shoes to work but the lesbian provost was, it is unlikely you're going to get very far with that equal protection claim. Her equal protection claim was based on the allegation that other university employees were allowed to exercise their free speech rights while she was not.

I find nothing that bcspace or Droopy do funny, its all very, very frightening.

But there's that dangling paragraph about equal protection that the decision really doesn't need, not that judges don't ever include paragraphs they don't need for their conclusion. (I'll tell you about the time I lost on a point in the trial court, the trial court was absolutely right, it was a clear statutory issue, the appeals court favorably cited my original position in the opinion even though I had left it out of my appeal brief because I was clearly wrong. On remand, I just ignored that part of the appeals decision. Frightening.)

But I think we both know that as things go up, arguments get dropped, judges get confused. My guess is the complaint had an EEOC cause of action in it (disparate treament based on religion that looks kind of like equal protection.) Wouldn't you want to include one? The judge's (forgive me) law clerk wasn't thinking clearing and felt the decision needed to say something about disparate treatment even though it didn't. The judge signed the decision.

I guess I could go to PACER and look at the underlying documents but its easier just to BS about it here

Some day I'm going to get myself in trouble for telling the truth.

I'll fess up that my original guess (before reading the complaint) was wrong, too. I was guessing she had pleaded membership in suspect class, as well as the first amendment, as a basis for the 14th amendment claim. Rather than reaching the substance of the suspect class part of the claim, the court relied on failure to provide evidence on a different element of the claim. Guess it shows why we have to read the damn pleadings.

[_lulu]

lulu--

I don't know how to attach a document to a post, so I am copying and pasting the complaint from PACER:

Thanks Darth, see my edited in link to the lower court opinion above if interested.

As you said straight up 1983.

You're going to have me reading Pickering before the day's over

[_lulu]

Guess it shows why we have to read the damn pleadings.

As Darth has taught us

[_Darth J]

It's been a long time since law school, but doesn't she have to prove either (1) interference with a fundamental right; or (2) membership in a "suspect class?" Looking over the complaint, it looks like she didn't plead suspect class. So, if her first amendment claim fails, so would her 14th amendment claim.

Yes to all of the above. Except it does not necessarily have to be a fundamental right. It would be strict scrutiny if it's a fundamental right; rational basis if it is a state-established right that is less than a fundamental constitutional right.

ETA: Example from Romer v. Evans:

The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271- 272 (1979); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e.g., Heller v. Doe, 509 U.S. ___, ___ (1993) (slip op., at 6).

I think what the court did was the typical avoidance of constitutional issues. Even though it had effectively torpedoed her 14th amendment claim by denying her 1st amendment claim, it relied on the narrow grounds of failure to present evidence on a required element of the claim. Not sure it made much sense to do that in this case.

Yeah, but I can see why they might feel compelled to address her equal protection claim to explain why they held that one university employee calling religious beliefs "bigotry" is different than this vice president making her statement about the nature of homosexuality. I agree with you; I'm just saying I can understand why they might want to address it.

[Guest]

<snip>

Sure, but let's say it wasn't part of her job. Suppose she was employed at Stanford and the editorial was not related to her job duties. As a constitutional matter, couldn't Stanford fire her based on what she said in the column? Why should it be different if we change the employer to UCLA? I just think it gets tricky when a public entity is functionally acting in the same capacity that private entities do. Another example: I get my electricity from a public utility. A few miles away, people get their electricity from a private utility. Would it make sense to give the customer service person I call constitutional rights to free speech that the customer service person working for the private utility does not share?

It seems pretty tricky to me, and I'm not surprised the courts struggle with it.

Not that tricky at all. Her claims failed because her lawyers failed. She likely would have won on the eqaul protection claim had her lawyers used some due diligence. For her equal protection claim her lawyers failed to provide a shred of evidence to a key element of a equal protection claim.

A public entity must follow the Constitution, a private entity is not so required.

A public employee does not surrender Constitutional Rights as a condition for public employment; however there is some limitations.

Well, nothing is tricky if you make things up.

Here's why I think it's tricky. What's the concern of the person being harmed? That person want the ability to express a political opinion in public as a private citizen without the threat of losing her job for it. From the of perspective the person whose rights are at stake, it is immaterial whether the employer is public or private. Judges are human, and they want the decisions they make to make sense. And I think that, at some level, judges have trouble justifying different constitutional treatment for public and private employees. Look upthread at my private/public utility example. Exactly why does it make sense that one is protected from being fired for speaking her mind and the other is not?

[_lulu]

Yeah, but I can see why they might feel compelled to address her equal protection claim to explain why they held that one university employee calling religious beliefs "bigotry" is different than this vice president making her statement about the nature of homosexuality. I agree with you; I'm just saying I can understand why they might want to address it.

Makes sense.

[_Res Ipsa]

Thanks for the refresher, DarthJ. It's tough for a person to win under rational basis, so I was equating qualifying for strict scrutiny as winning. Sloppy of me. And I agree there are understandable reasons for addressing the 14th amendment claim the way the court did.