President Biden’s Department of Veteran Affairs (VA) is not only performing illegal abortions, it is targeting pro-life employees of the VA for insidious discrimination. We’re taking legal action to fight back.
The ACLJ has stepped in to defend an employee of the Department of Veteran Affairs who was targeted because of his religious, pro-life views. The facts of this matter provide yet another alarming example of the Biden Administration’s unapologetic pursuit of a radical abortion agenda in a manner that defies federal law. The ACLJ has already taken action to challenge the VA’s attempts to circumvent both state and federal law by implementing an Interim Rule requiring that abortions be performed in VA facilities.
Our client is a medical health employee working at a VA medical center in Colorado. Like many VA employees, and since COVID, many of his job responsibilities are now completed via email, Skype and/or SharePoint – all Microsoft Office applications. VA employees across the country participating in these MS Teams applications can upload a photograph to their Microsoft profile which is displayed in these various MS Teams applications. Photos selected by VA employees include a wide array of personal logos or photos of nature, dogs, family, LGTBQ rainbow and/or flags, and the like. Our client chose a picture expressing his appreciation for human life – both born and unborn. One of his photos was that of a red heart and a cross in the middle with the words “pro-life.” Another photo depicted an unborn baby inside a heart shape with a cross.
However, our client was quickly singled out and instructed by his supervisors to remove his pro-life and religious photos because they were “found offensive and triggering by staff members.” He was also accused of conduct that is “unprofessional in the workplace and unacceptable.” While our client complied with the request and removed his photo, he noticed that all other VA employees were permitted to continue to display their personally selected photos – even after our client raised the issue with his supervisors and notification was sent out by the VA of a new policy prohibiting such photos.
The VA is engaged in classic unconstitutional viewpoint discrimination, allowing the viewpoints of some and silencing the pro-life religious viewpoint of our client. This will not stand.
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We immediately reached out to the Department of Veteran Affairs to defend our client’s actions and to address the selective and unconstitutional application of its policy to target and silence only those views it disagrees with. As the Supreme Court has reiterated time and time again (including just this summer), “the Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.” Kennedy v. Bremerton Sch. Dist., Case No. 21-418, slip op. at 1 (June 27, 2022).
The Free Exercise Clause of the First Amendment protects against “official expressions of hostility” to religion, or application of principles or laws that are not “neutral” or “generally applicable” absent a compelling state interest that is narrowly tailored in pursuit of that interest. Id. at 13. A policy fails the test of neutrality if the religious exercise is its “object.” A government policy will fail the general applicability requirement if it “prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way,” or if it provides “a mechanism for individualized exemptions.” Id. at 14 (citations omitted). Here, the VA center’s actions/policy are neither neutral nor generally applicable because it seeks to restrict only pro-life religious pictures.
The VA center’s actions are also suspect under the Free Speech Clause. “Employees [can]not be forced to relinquish their First Amendment rights simply because they ha[ve] received the benefit of public employment.” Tucker v. Cal. Dep’t of Educ., 97 F.3d 1204, 1210 (9th Cir. 1996) (citing Pickering v. Board of Education, 391 U.S. 563 (1968)). In keeping with this principle, if and when the government restricts speech or religious exercise, it bears the burden of justifying its actions and its interest must outweigh those of the employee. Id. (citing Johnson v. Multnomah County, 48 F.3d 420, 422 (9th Cir.), cert. denied, 115 S. Ct. 2610 (1995)). Where a public employee speaks as a private citizen on a matter of public concern – as opposed to pursuant to his official duties – First Amendment protections may apply. Id. at 15.
Further, the Establishment Clause will not protect the VA’s targeting of our client. As courts have held over and over again, “there is a critical difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Hale v. Marques, 2020 U.S. Dist. LEXIS 57282, at *22 (D. Colo. Feb. 3, 2020) (quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 841, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995) (italics and internal quotation marks omitted). The Establishment Clause does not include anything like a “modified heckler’s veto, in which . . . religious activity can be proscribed” based on “‘perceptions’” or “‘discomfort.’” Good News Club v. Milford Central School, 533 U. S. 98, 119 (2001) (emphasis deleted). See also Kennedy, Case No. 21-418, slip op. at 32 (noting the government was seriously mistaken in suggesting it had a duty to ferret out and suppress religious speech and observance by one of its employees while allowing comparable secular speech).
We have now filed a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC is an agency tasked with enforcing federal employment-related nondiscrimination laws and reviewing charges of discrimination by employers. Review by the EEOC is a necessary step before filing a lawsuit. We hope that we are able to reach a quick resolution during the EEOC process that not only acknowledges the unjust treatment suffered by our client here, but ensures our client will never again be the target of discrimination and retaliation by his federal employer. But if not, we’ll be prepared to file a lawsuit if necessary. We will keep you updated on our progress.
LifeNews Note: Abigail Southerland serves as Senior Litigation Counsel with the ACLJ.
