Freedom of Religion and Law Enforcement Employment: Recent Court Decisions
Schofield, Daniel L., The FBI Law Enforcement Bulletin
The demands of law enforcement sometimes can conflict with the various religious faiths represented in the ranks of law enforcement employees. Recent court decisions have examined the extent to which law enforcement organizations can 1) investigate whether onduty religious activity adversely affects job performance, 2) place limitations on workplace proselytizing, 3) enforce work assignments that conflict with an employee's religious beliefs, and 4) require employees to work on their Sabbaths.
This article discusses Federal constitutional and statutory freedom of religion protection in the context of law enforcement employment.(1) It then identifies some potential areas of conflict between employees' religious beliefs and law enforcement interests and sets forth some general principles to guide the development of departmental policies regulating workplace religious activities.
Constitutional and Statutory Protections
The first amendment to the U.S. Constitution provides, in part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."(2) In addition to this constitutionally based protection provided by the "establishment" and "free exercise" clauses, religious freedom in the workplace also is protected by Title VII of the Civil Rights Act of 1964(3) (hereinafter Title VII), which makes it unlawful to discriminate on the basis of religion, and by the Religious Freedom Restoration Act of 1993(4) (RFRA), which restores for purposes of first amendment analysis the requirement that governmental actions that substantially burden freedom of religion be justified by a compelling interest.(5)
Investigating On-duty Religious Activity
Complaints of workplace misconduct relating to an officer's religious beliefs or practices can be reasonably investigated to determine if legitimate law enforcement interests are affected adversely. In Vernon v. City of Los Angeles,(6) the U.S. Court of Appeals for the Ninth Circuit ruled that the actions of the City of Los Angeles did not violate the Federal constitutional rights of a former assistant chief of the Los Angeles Police Department when it investigated whether his religious views impermissibly affected his onduty performance.
The investigation, conducted by the police department under the supervision of the chief of police, failed to substantiate 1) that the assistant chief gave unfair advantage in hiring and promotion decisions to fellow church members and thwarted the progress of homosexual and female officers in the department; 2) that he improperly consulted religious elders on issues of public policy; and 3) that he sent official communications from his office that contained or displayed religious symbols. The assistant chief alleged that the investigation violated his rights under the free exercise and establishment clauses of the first amendment by causing him to suffer extreme embarrassment, anxiety, and fear in the pursuit of his religious beliefs.
The court rejected his free exercise claim because the assistant chief failed to establish that the government had placed a substantial burden on his exercise of religious freedom by conducting the investigation.(7) The court said the investigation did not interfere with his ability to communicate with his God or pastor, but only with his freedom to worship in the way he wants without repercussions. The court noted that the investigation was restricted in scope to consider only onduty activities and concluded that to the extent "...religious practices - namely, his consultation with church elders and his proselytism - were burdened at all, such burdens cannot be said to be substantial."(8)
Next, the court concluded that the investigation did not violate the establishment clause's mandate of government neutrality toward religion for several reasons. First, the investigation had a valid, secular purpose to determine whether the assistant chief's religious views affected his job performance in such a way as to violate either police department policies or the constitutional fights of employees. …