Basically Law

Issue.  Did a Sheriff violate the First Amendment’s Establishment Clause when he invited a Christian Organization to give Christian-based presentations at mandatory meetings at the police department?

Background.  Milwaukee County Sheriff David Clarke, Jr. became impressed with a newly formed organization, the Fellowship of the Christian Centurions (“Centurions”).  Clarke invited the organization, which is faith based and preaches Christian values, to speak at a leadership conference meeting that was mandatory for all of those with a rank of Sergeant or higher.  At that meeting, Clarke handed out material where he underlined “people of faith” And which included biblical verses.   Further, the Centurions, who spoke at the meeting, quoted the Bible and preached about a higher calling during its presentation.

After that conference, Clarke invited the group to speak and give presentations at mandatory roll call meetings.  Even though some officers complained of the religious nature of these mandatory presentations, Clarke continued to allow for them.  Two officers, one Catholic and one Muslim, brought a lawsuit against the Sheriff and the Department which alleged that the Sheriff had violated the Establishment Clause of the First Amendment by promoting religion.  The Sheriff countered that he did no such thing and that the First Amendment right to Freedom of Speech compelled the Sheriff to allow such presentations.  Actually, the Sheriff claimed that the Free Exercise Clause of the First Amendment compelled such presentations, but the legal description of the claim was better suited for Freedom of Speech analysis.

The District Court ruled against the Sheriff and found a violation of the Establishment Clause.  The Sheriff appealed.

Argument and Law.  Did the Sheriff violate the Establishment Clause by allowing such presentations at mandatory meetings?  Under the Establishment Clause, the government cannot promote “a point of view in religious matters” or otherwise take sides between “religion and religion or religion or non-religion”  Further, the Supreme Court has noted that there is a violation of the Establishment Clause if the Government’s actions are characterized by any of the following:  1.) a non-secular purpose; 2.) the principal or primary effect of advancing or inhibiting religion; or 3.) fostering an excessive government entanglement with religion.  For the purposes of this case, focus on the second characteristic.  Did these presentations at mandatory meetings have the primary purpose of advancing or inhibiting religion?

How would you rule?

Court’s Analysis.  The Seventh Circuit Court of Appeals agreed with the District Court that the Sheriff’s actions violated the Establishment Clause.  In determining whether the principal or primary effect of the Sheriff’s actions was to advance religion, the Court need not examine the intent of the Sheriff.  All that matters is if a “reasonable person, apprised of the circumstances surrounding the [challenged government act], would conclude that [it] amounted to an endorsement of religion.”

Outside organizations had limited access to giving presentations to officers before mandatory meetings.  Only those organizations that partner with the Sheriff are granted access to these meetings.  Therefore, a reasonable person would expect that any organization which speaks is being endorsed by the Sheriff (and the Department).  There is little doubt that these meetings promoted a Christian/religious viewpoint.  Thus, it is hard to ignore that such religious viewpoints are being endorsed by the Sheriff.  This is not allowed under the Establishment Clause.

The Court did not find that no religious organization is allowed to speak before a police department at all or ever.  But, the fact that this organization was permitted by the Sheriff to speak at mandatory meetings gives the reasonable impression that the Sheriff and the Department were endorsing the viewpoint which was being presented.

The Court dismissed the Sheriff’s claim that the First Amendment Right to Freedom of Speech compelled him to allow the group to speak.  The Court did not believe that these meetings were a public forum.  There is a distinction between a public forum and a captive audience.  The First Amendment does not compel someone to speak at a place that is not a public forum, which these meetings were.

Read the decision, Milwaukee Deputy Sheriffs’ Association v. Clarke, here.