AAC F A M I L Y & F R I E N D S DISPLAYS
endorsing religion, which the Establish- ment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect” [Bd. of Educ. of the Westside Cmty. Sch. v. Mer- gens, 496 U.S. 226, 249-50 (1990)]. It is, therefore, unconstitutional for public officials to deny private individuals (like employees) the right to religious speech and expression by imposing on them a limitation intended for the government. Accordingly, the government can avoid the requirement that a religious display include a sufficient number of secular figures (the Lemon test + the endorse- ment test) if private individuals who are not subject to religious speech restrictions (i.e., not county officials) are the ones to initiate the religious display. See Mergens, 496 U.S. at 250. In such event, the gov- ernment must allow all private individuals an equal opportunity for same or similar private religious expression on the gov- ernment’s property. And, of course, the government always has the right to act to maintain order, ensure security and keep the peace. In such event, any governmen- tal order that discriminates on basis on the religious content of speech must be neces- sary to further a compelling governmental interest and must be a restriction that is narrowly tailored to achieve that interest. See Mergens, 496 U.S. at 250.
Private Display by an Individual Em-
ployee in a Non-public Area: In Pickering v. Board of Education, 391 U.S. 563 (1968), the U.S. Supreme Court commenced with the recognition that teachers as public em- ployees do not relinquish their First Amend- ment rights they would otherwise enjoy as citizens. Tus, generally, a county employee may have a religious display at his or her desk. Te Court also recognized that a “state has interests as an employer in regulating the speech of its employees that differ signifi- cantly from those it possesses in connection
with the regulation of the speech of the citizens in general.” So, the county may impose some limitations on what can and can not be displayed by employees. From the Pickering case came “the Pickering balance,” a legal doctrine applied in cases where the employee’s right of free speech is being balanced against the employer’s right to control the employer’s business or workplace. Te Pickering balance test was reaffirmed by the Supreme Court in City of San Diego v. Roe, 543 US 77 80 (2004) (“[A]government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by rea- son of his/her employment.) See also Con- nick v. Myers, 461 US 138, 142(1983) (“For at least 15 years, it has been settled that a state cannot condition public em- ployment on a basis that infringes the em- ployee’s constitutionally protected interest in freedom of expression.”).
Duties as a Public Employer: Te First Amendment both prohibits any govern- mental action respecting an establishment of religion (Establishment Clause) and prohibits governmental action impeding a citizen’s free exercise of religion (Free Exer- cise Clause) or speech. For a county official to allow his or her own religious display in the courthouse, the county official must be able to prove that the display is there for a “legitimate secular purpose” and not there merely as the county official’s en- dorsement of the religious belief depicted by the religious display. Te Lemon test and the endorsement test must be satis- fied, as explained above.
Individual Rights of Elected County Officials: A condition precedent for serv- ing as an elected county official is the oath of office: “I ... swear ... I will support the Constitution of the United States and the Constitution of the State of Arkansas, and I will faithfully discharge the duties of the
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office ... .” Instead of a monarchy, we-the- people chose (by ratifying the constitu- tion) a republican democracy. We-the- people control our public sector destiny through the representatives we choose to elect. And, those elected have to swear they will act according to the limitations we-the-people have imposed on them by way of the constitution and the oath of office requiring them to support the constitution. Tose limitations on what a county official can do include the First Amendment and the decisions by the U.S. Supreme Court (which is right because it is final and not final because it is right) interpreting the First Amendment. True, elected officials do not relinquish their First Amendment rights they would oth- erwise enjoy as citizens but ... they have, as citizens, chosen to run for office and have chosen the office they ran for and have chosen to swear to support the constitu- tion that governs official capacity conduct as an elected official.
Conclusion: If an elected official believes that he or she has an individual citizen right that, if exercised, would not violate the sworn duty to not establish his or her religion as the official religion of his or her public official workplace, then that elected official should seek legal counsel so that the elected official can both exercise his or her individual constitutional right and follow the rules that proscribe the elected official from officially establishing (from the per- spective of a reasonable observer) his or her religion as the religion of choice for his or her public office workplace.
Mike Rainwater, a regular contributor to County Lines and lead attorney for AAC Risk Management, is principal shareholder of Rainwater, Holt, and Sexton, P.A., a state- wide personal injury and disability law firm. Mr. Rainwater has been a lawyer for over 30 years, is a former deputy prosecuting attorney, and has defended city and county officials for over 25 years.
www.arcounties.org COUNTY LINES, WINTER 2016 25
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