Full Text - Letter Regarding Inquiry in Traverse City, Michigan

July 7, 2008 - 7:02 PM

(Editor's Note: The following is the correspondence between the Thomas More Center and the office of the city manager in Traverse City, Michigan, where a local police officer was facing an inquiry over his objections to bumper stickers on municipal vehicles supporting homosexuality advocacy.)

January 12, 2001

Mr. Richard I. Lewis
City Manager, Traverse City
400 Boardman Avenue
P.O. Box 592
Traverse City, MI 49685-0592

FAX (231) 922-4476

Dear Mr. Lewis:

The Thomas More Center for Law & Justice has been retained by Mr. David Leach, a 29 year veteran of the Traverse City [hereinafter "City"] Police Department, to pursue legal claims arising from efforts by City officials to chill his First Amendment rights and discriminate against him because of his religious views. Specifically, his claims arise from the Human Rights Commission's pursuit of an investigation of him on account of statements he made concerning a matter of public concern.

By way of introduction, the Thomas More Center for Law & Justice is a national, public-interest law firm based in Ann Arbor, Michigan. We are dedicated to defending and promoting religious freedom and free speech rights. In particular, we are committed to defending and promoting the First Amendment liberties of public employees. We accomplish our goals on behalf of our clients through education, litigation, and related activities. As a public-interest law firm, we do not charge our clients for our legal services.

It is our understanding that the City's Human Rights Commission, a commission consisting of members appointed by the Mayor with the approval of the City Commission, has announced that it is pursuing an investigation of Mr. David Leach because of public statements he made to various news media. Specifically, Mr. Leach, speaking on several occasions as a private citizen, expressed his opposition to homosexuality on account of his deeply-held, personal religious beliefs. The Human Rights Commission is calling for the Chief of Police of Traverse City to conduct a formal investigation of Mr. Leach because of the statements he made. Mr. Mark Williams, the Chairman of the Human Rights Commission, has publicly questioned Mr. Leach's fitness for duty because of Mr. Leach's personal religious convictions.

Clearly, this is an effort to harass and intimidate Mr. Leach on account of his religious beliefs. Moreover, it is an overt effort to chill his First Amendment Rights.

As you know, public employees, such as Mr. Leach, do not forfeit their First Amendment rights upon entering the public work place. Perry v. Sinderman, 408 U.S. 593 (1972); see also Lewis v. Cowen, 165 F.3d 154, 161 (2d Cir.), cert denied, 120 S.Ct. 70 (1999) (stating that "[p]ublic employees may not be compelled to abandon all of their constitutional rights as a prerequisite to . . . continuing employment").

Among the rights that public employees retain is the right to free speech. Mr. Leach clearly has the right to comment upon matters of public concern, such as the City's policy to adopt as an official logo the well-recognized and well-established symbol of the gay and lesbian movement. See Pickering v. Board of Educ., 391 U.S. 563, 568 (1968) (holding that public school teachers may not be forced to relinquish First Amendment rights they would otherwise enjoy as private citizens to comment on matters of public concern). He has the right to object to such a policy because it offends his religious convictions. As you know, the First Amendment protects private religious speech as fully as it protects secular private speech. Capital Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).

Additionally, the First Amendment protects a public employee's right to the free exercise of religion. The free exercise of religion is "first and foremost, the right to believe and profess whatever religious doctrine one desires." Employment Div. v. Smith, 494 U.S. 872, 877 (1990).

The Human Rights Commission's efforts are clearly an attempt to chill Mr. Leach's exercise of his well-established constitutional rights.

The United States Supreme Court's warning is clear: "[v]igiliance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of the employees' speech." Rankin v. McPherson, 483 U.S. 378, 384 (1987).

Furthermore, the Constitution prohibits the government from regulating speech based on its content or the message it conveys. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995); see also Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (stating that the First Amendment forbids the government to regulate speech in ways that favor one viewpoint or idea over another). The City's attempt to intimidate, harass, and potentially punish Mr. Leach because of the content of his speech and his viewpoint toward homosexuality is a gross violation of the First Amendment.

As I am sure you are aware, Mr. Leach may vindicate his constitutional rights by filing a civil rights action pursuant to 42 U.S.C. 1983. Clearly, Mr. Leach's comments touched upon a matter of public concern and are therefore fully protected by the Constitution.

In addition to his constitutional claims, Mr. Leach could pursue a claim under Title VII of the Civil Rights Act of 1964. An employer violates Title VII when (1) his employee holds a sincere religious belief that conflicts with an employment requirement, (2) the employer knows about the conflict, and (3) the employee was discharged, disciplined, or subjected to discriminatory treatment for failing to comply with the conflicting employment requirement. Smith v. Pyro Mining Co., 827 F.2d 1081 (6th Cir. 1987).

Under Title VII, a sincerely held religious belief "includes all aspects of religious observance and practice, as well as belief . . . ." 42 U.S.C. 2000e(j). This provision is interpreted very liberally by the courts and the Equal Employment Opportunity Commission (EEOC). Under this standard, an employer violates Title VII if it fires or reprimands an employee for speaking about religion on the job. Brown v. Polk County, 61 F.3d 650 (8th Cir. 1995). Likewise, employers are prohibited from forcing an employee to speak in a manner that would violate his religion. Kentucky Comm'n on Human Rights v. Lesco Mfg. & Design Co., 736 S.W.2d 361 (Ky. Ct. App. 1987).

Simply put, Title VII protects an employee from religious discrimination. And discrimination can manifest itself in several ways, including demotion, layoff, transfer, failure to promote, discharge, harassment or intimidation. The efforts of the City's Human Rights Commission squarely falls within the prohibitions of Title VII.

DEMAND

In order to avoid unnecessary litigation in federal court, we demand the following: (1) your assurance that City officials, including the Chief of Police and the Human Rights Commission, or any other City commission or official, will immediately cease all efforts to investigate Mr. Leach on account of the public statements he made regarding homosexuality, (2) you publicly announce that Mr. Leach is not under investigation and that he will not be investigated on account of the statements he made, (3) you order all City officials to cease harassing and intimidating Mr. Leach on account of his publicly expressed views toward homosexuality, and (4) you expunge from any and all official records of Mr. Leach any adverse comments and/or reprimands arising from this issue.

Because of the important constitutional rights at stake, you must assure us in writing that you intend to comply with these demands by the close of business on Tuesday, January 16, 2001.

Please understand that we have advised Mr. Leach of his right to take immediate legal action against Traverse City officials should you persist in singling him out and harassing him on account of his religious view toward homosexuality. We are prepared at this time to pursue a lawsuit in federal court should you decide not to comply with the terms of this letter.

Very truly yours,
THOMAS MORE CENTER FOR LAW & JUSTICE

Richard Thompson
Chief Counsel

cc:

Mr. Larry Hardy
Mayor, Traverse City
FAX (231) 922-4476

Chief Ralph Sofferdine
Police Chief, Traverse City Police Department
FAX (231) 922-4515

Mr. Mark Williams
Commissioner, Human Rights Commission
FAX (231) 922-4476