6Th Circuit: Diversity Trumps Religious Freedom

[BCSpace]

For your consideration:

The 6th U.S. Circuit Court of Appeals has ruled that university diversity policies trump the First Amendment’s protections of religion and religious expression, but the dispute will continue, as a legal team representing former University of Toledo worker Crystal Dixon has requested a rehearing.

At issue are Dixon’s personal religious statements regarding homosexuality and the school’s affirmative action program for homosexuals.

Dixon was dismissed from her university post after she wrote a personal letter to the editor of a local newspaper objecting to the characterization of homosexuality as being the same as race.

“I take great umbrage at the notion that those choosing the homosexual lifesetyle are ‘civil rights victims.’ Here’s why. I cannot wake up tomorrow and not be a black woman,” she wrote. “I am genetically and biologically a black woman and very pleased to be so as my Creator intended. Daily, thousands of homosexuals make a life decision to leave the gay lifestyle evidenced by the growing population of PFOX (Parents and Friends of Ex Gays) and Exodus International just to name a few.”

The university fired her from her position in the University of Toledo’s human resources division for writing the letter, citing her religious beliefs. She sued, and a lower court concluded that the school’s diversity efforts trumped Dixon’s First Amendment rights.

The appeals court now has agreed, according to the American Freedom Law Center, or AFLC, which represents Dixon.

AFLC asked for a rehearing because the appeals court panel assumed that the university had editorial control over any of Dixon’s statements because of her position with the school.

“Dixson was fired from her employment as associate vice president for human resources with the University of Toledo because she expressed her personal, Christian views as a private citizen in an opinion piece published in the Toledo Free Press. Plaintiff did not occupy a political position nor did she publicly criticize any identified policy of her employer in her writing. Rather, plaintiff was fired for expressing her personal religious beliefs in a local newspaper on a very controversial issue: gay rights,” the legal team said in its rehearing request.

“As the U.S. Supreme Court has long stated, ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’”

The legal team argued: “Here, plaintiff was fired because her personal religious beliefs did not comport with the university’s ‘diversity’ values. In fact, plaintiff’s speech was in response to a published editorial – it was not in response to anything her employer did or did not do. As defendants acknowledged in their brief, the only part of plaintiff’s speech that remotely touched upon university policies ‘was arguable supportive of the university.’”

The rehearing petition explained that the appeals court panel gave Dixon’s speech “no consideration” and instead ruled for the school “based on the presumption” the school controlled Dixon’s personal speech.

But the attorneys pointed out that precedent is “well settled that ‘a state cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.’”

“There is no dispute that plaintiff was speaking on a matter of public concern and was thus terminated as a result of her speech,” the petition said. “And there is no reasonable dispute that when plaintiff was writing her opinion piece on her personal computer from her home on a Sunday, she was not speaking pursuant to her official duties with the university, but as a private citizen.

“This speech must be accorded the greatest weight … and not presumptively dismissed, as the panel did here, thus allowing a government employer to suppress speech based on a broad rendering of its ‘diversity’ values,” the petition said.

“Additionally, the university president, Defendant [Lloyd] Jacobs, was permitted to express his personal and controversial opinions on the very same subject in the Toledo Free Press without being punished for doing so.”

In fact, Jacobs announced a very public threat in his guest column over the issue, stating, “We will be taking certain internal actions in this instance to more fully align our utterances and actions with this value system.”

Crystal Dixon’s “comments do not accord with the values of the University of Toledo,” he wrote.

“It is necessary … for me to repudiate much of her writing.”

WND reported that as the appeals court decision approached, David Yerushalmi of AFLC said, “It should be concerning to all Americans that officials at a public institution such as the University of Toledo believe they can fire someone for violating the university’s ‘value system’ even though such actions clearly violate the Constitution.

“This case only reinforces the fact that the liberal idea of ‘diversity’ is code for the tyranny of political correctness.”

AFLC co-founder Robert Muise said at the time, “Anti-Christian bias and bigotry is a hallmark of the ‘diversity’ crusade that is promoted in our universities and other public institutions – and this case is an egregious example of this one-way diversity and its pernicious impact on our fundamental rights.”

It was April 3, 2008, when Dixon read an opinion piece published in the Toledo Free Press that compared homosexuality to the civil rights struggles of African-Americans.

“Dixon, an African-American and practicing Christian, disagreed with this comparison and subsequently submitted her own opinion piece to express her personal viewpoint,” AFLC reported.

“Dixon’s opinion piece, published on April 18, 2008, in the newspaper’s online edition, stated, in relevant part, ‘I respectfully submit a different perspective for [the author of the original op-ed] and Toledo Free Press readers to consider . … I take great umbrage at the notion that those choosing the homosexual lifestyle are civil rights victims.’”

She signed only her name and made no mention of her position at the university.

One month later, Dixon got a letter from Jacobs terminating her employment over “the public position you have taken in the Toledo Free Press.”

She sued over First and 14th Amendment violations.

6th Circuit: Diversity trumps religious freedom-Says employee personal statements must align with university policy

The BoM verses against being punished for one's thoughts would seem to apply here. Based on the info provided, I predict the current SCOTUS composition will overturn this lower court decision as it should.

[jwhitlock]

If it is not overturned, it will simply be one more bit of evidence that religious freedom of any type will eventually be fully subject to politically correct litmus tests determined by government officials. Acceptance of homosexual lifestyles is one of those litmus tests that is being used to erode those freedoms.

[Sky]

“I take great umbrage at the notion that those choosing the homosexual lifesetyle are ‘civil rights victims.’ Here’s why. I cannot wake up tomorrow and not be a black woman,” she wrote. “I am genetically and biologically a black woman and very pleased to be so as my Creator intended. Daily, thousands of homosexuals make a life decision to leave the gay lifestyle evidenced by the growing population of PFOX (Parents and Friends of Ex Gays) and Exodus International just to name a few.”

I have yet to meet a single gay person who's been able to change their orientation from gay to straight. Even the ones that have left the "lifestyle" - it continues to be a temptation that they have to fight throughout the duration of their lives.

That said, I believe those opposed to homosexuality based on religious grounds should be able to say so. They just need to be extremely careful about how they say it. We can follow the example of our Church leaders in that regard. Mormonsandgays.org is a great resource.

I don't really think this is a "liberal" versus "conservative" issue anymore - it's just the direction that our society is moving in as a whole.

[california boy]

I also think that this court decision was wrong. However misguided and incorrect her views on homosexuality is, she should be able to express those beliefs without being fired. Those that think this ruling is wrong should also be the ones supporting EDNA. It is the flip side of the coin. People should not be fired for being gay either. We have had enough of this kind of behavior from both sides of this issue. Unfortunately many who will protest this court decision are the exact same people who have no problem being able to discriminate against gays in the work place. When that issue comes up, they scream that the employer has the right to follow their conscious and religious beliefs.

[Buzzard]

Why do I get the sneaking suspicion that is she had been an employee at a Christian school fired for pro-gay advocacy, this would be a much bigger story, with the ACLU providing legal representation?

[Calm]

Why do I get the sneaking suspicion that is she had been an employee at a Christian school fired for pro-gay advocacy, this would be a much bigger story, with the ACLU providing legal representation?

I believe the ACLU is providing her legal representation already.

[DavidB]

The BoM verses against being punished for one's thoughts would seem to apply here. Based on the info provided, I predict the current SCOTUS composition will overturn this lower court decision as it should.

not the really the same as the BoM verse situation. Falsehood or rather lies were punished in the BoM. The verse in the BoM does not cover employer/employee relationship as to speech.

Employer/Employee speech issues have been addressed by SCOTUS. IIRC it invovled a Coach who wrote a letter to an editor about a sporting event, I do not recall the outcome of that case.

Not the case i was thinking of but here is a start of the analysis:

"In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment."

[DavidB]

Bcspace,

wnd has misrepresented the case.

For your consideration:

Dixon v Univeristy of Toledo

Dixon argues that the district court erred in its First Amendment retaliation analysis, contending that the defendants “violated [her] right to freedom of speech by terminating her employment because she authored an opinion piece in a local newspaper in which she expressed her personal opinion and viewpoint on the issue of homosexuality and civil rights from the perspective of a Christian, African-American woman.” Appellant Br. at 15.

Dixon further asserts that the district court misapprehended the equal-protection standard, arguing that “when government officials engage in discriminatory treatment based on the exercise of the fundamental right to freedom of speech they violate not only the First Amendment, but they also violate the equal protection guarantee of the Fourteenth Amendment.” Id. at 34–35.

The word religion appears once in the opinion; religious appears once; Christian appears twice.

Her argument was not based on religious freedom.

[Damien the Leper]

Bcspace,

wnd has misrepresented the case.

For your consideration:

Dixon v Univeristy of Toledo

The word religion appears once in the opinion; religious appears once; Christian appears twice.

Her argument was not based on religious freedom.

Can you expand on this?

[DavidB]

Can you expand on this?

what do you mean? Crystal Dixon did not base her argument on religion, her argument was one of free speech. As public employee she is not free from being fired for her free speech as a private citizen.

Crsytal Dixon speech - the letter to the editor, written as a private citizen who is a public employee - was not protected speech, accordingly her public employer was within its rights to terminate her for her speech.

Crystal Dixon did not argue religious freedom at the District level, her case was dismissed on Summary Judgment which means she did not present a "genuine dispute as to any material fact" regarding her claims. The 6th Circuit affirmed the summary judgment, meaning the 6th agrees that Dixon did not present a genuine dispute as to any material fact.

wnd, is a very biased "news" source; it has distorted the case to make it appear to be one of argued on the basis of religious freedom.

[Damien the Leper]

what do you mean? Crystal Dixon did not base her argument on religion, her argument was one of free speech. As public employee she is not free from being fired for her free speech as a private citizen.

Crsytal Dixon speech - the letter to the editor, written as a private citizen who is a public employee - was not protected speech, accordingly her public employer was within its rights to terminate her for her speech.

Actually, you answered my question with this reply. Thank you. I don't even pretend to understand law. At you made the situation more clear for me.

[ERayR]

I believe the ACLU is providing her legal representation already.

Nope Cal that would be the American Freedom Law Center.

[Calm]

Nope Cal that would be the American Freedom Law Center.

Read it too fast and just substituted the similar abbreviation...thanks.

[BCSpace]

wnd has misrepresented the case.

......

Her argument was not based on religious freedom.

I disagree. From your own quote:

Dixon argues that the district court erred in its First Amendment retaliation analysis, contending that the defendants “violated [her] right to freedom of speech by terminating her employment because she authored an opinion piece in a local newspaper in which she expressed her personal opinion and viewpoint on the issue of homosexuality and civil rights from the perspective of a Christian, African-American woman.” Appellant Br. at 15.

Her use of speech had it's basis in her Christianity as per her own words. When one's 1st Amendment rights are violated and the basis was religious speech, then, as per the 1st Amendment, there has been a prohibition on the free exercise of one's religion.

wnd, is a very biased "news" source

This is also not true.

http://www.enumclaw.com/editorial-opinion/2012-most-trustworthy-news-sources/

One should distinguish between commentary and news reporting.

[BCSpace]

They just need to be extremely careful about how they say it.

Why should they be any more careful than the opposite side of the coin? If your opinion is that the opposite side of the coin is right, then why should an opinion opposite yours be subject to restriction and yours not?

[DavidB]

Bcspace, If her religious freedom was her argument the courts would have addressed it, with at minimum a one sentence dismissal or a lengthy discussion.

[DavidB]

This case is about the balancing act of individual freedom and the functioning of government. Public employees have limited protection regarding free speech. Policy Making public employees freedom of speech on certain matters is even more limited.

Crystal Dixon could not meet the minimal burdens for her claims to have her case heard.

[cdowis]

I have yet to meet a single gay person who's been able to change their orientation from gay to straight.

Can you give us an idea of how many people you cdonducted a survey? 200, 50, 10, one, less than one? Do you go around randomly asking people this question, or simply wait for them to tell you their experience.

[Tacenda]

Can you give us an idea of how many people you cdonducted a survey? 200, 50, 10, one, less than one? Do you go around randomly asking people this question, or simply wait for them to tell you their experience.

He did not say he conducted a survey. It's not too difficult to surmise and come up with the answer. So many humanistic stories vouch for it. And enough suicides to see that some failed at it. Heartbreaking too.

[Calm]

If one defines changing orientation as not having any feelings of attraction where there once were, I have yet to hear of a long term change where that occurs. Such feelings can be controlled and highly limited by conscious effort so that their occurrence is extremely rare, but nonexistent without effort to control...haven't heard of that.

Have heard of several long term successful stories of those who have been able to develop love and physical attraction to a particular individual of the opposite gender where once though feelings would not exist.

I would assume that stories of success would be much less often shared if only for privacy, in the past due to the bigotry and lack of understanding towards those with SSA, there would be enough stress on their relation without having more...besides how often do totally heterosexual couples share their issues with physical intimacy publicly? Why would we assume differently for others? Nowadays there is the added reason of criticism from certain quarters that a man (or woman) is living a lie if they don't promote their strongest natural inclinations rather than trying to control them and replace them with other feelings they believe are more appropriate.

All in all, I see little benefit for such a couple to go public with their struggles. That some have recently to help others is very admirable, IMO.

[DavidB]

I disagree. From your own quote:

Her use of speech had it's basis in her Christianity as per her own words. When one's 1st Amendment rights are violated and the basis was religious speech, then, as per the 1st Amendment, there has been a prohibition on the free exercise of one's religion.

The following is from documents filed with the 6th Circuit as found on PACER:

"She [Crystal Dixon] has never made a claim in this case for violation of the First Amendment Establishment of Religion Clause or Free Exercise of Religion Clause." Appellee Br. at 3.

One should distinguish between commentary and news reporting.

the article you posted is both commentary of wnd and "news reporting" i.e. repeated the claims of others.

The first sentence of the article can not be substantiated (see above, she never made a religious freedom claim or establishment clause violation claim), the first sentence of the article is commentary on the part of wnd.

[BCSpace]

I disagree. From your own quote:

Her use of speech had it's basis in her Christianity as per her own words. When one's 1st Amendment rights are violated and the basis was religious speech, then, as per the 1st Amendment, there has been a prohibition on the free exercise of one's religion.

The following is from documents filed with the 6th Circuit as found on PACER:

"She [Crystal Dixon] has never made a claim in this case for violation of the First Amendment Establishment of Religion Clause or Free Exercise of Religion Clause." Appellee Br. at 3.

Yet again I must point out that your own quote used the same argument that it was.

the article you posted is both commentary of wnd and "news reporting" i.e. repeated the claims of others.

As would be yours. As for the reporting then, there is no problem and I happen to agree with the opinion of both yours and mine.

[Sky]

Can you give us an idea of how many people you cdonducted a survey? 200, 50, 10, one, less than one? Do you go around randomly asking people this question, or simply wait for them to tell you their experience.

I base it on the gay people (LDS or otherwise) that I have known and talked to and been friends with. And stories that people have shared about themselves online. Some of them are in opposite sex marriages, but if you listen carefully to them, none of them will tell you that their orientation or attraction to the same sex has been reversed into heterosexual attractions. This is especially true, I think, with men. This, in spite of years of trying out different things and prayer and pleading.

[DavidB]

Yet again I must point out that your own quote used the same argument that it was.

CFR, to the document and page, wherein she Crystal Dixon specifically and by legal/Judicial standards asserts a violation of the First Amendment Establishment of Religion Clause or Free Exercise of Religion Clause. Here is a hint, simply tossing about a religious "phrase" does not put the Court on notice that one is claiming violation of the First Amendment Establishment of Religion Clause or Free Exercise of Religion Clause. There are specific standards for establishing what ones arguments are.

As would be yours. As for the reporting then, there is no problem and I happen to agree with the opinion of both yours and mine.

Don't change the subject or try to deflect - wnd's conduct is not about me.

WND was biased in its commentary.

WND misrepresented the case in its commentary.

Crsytal Dixons lawyers also misrepresented the case.

WND is not at fault for the misrepresentations made by Crystal Dixon's legal team - as the is just WND "news" reporting.

WND is at fault for it's own commentary which misrepresents the case.

[cdowis]

I base it on the gay people (LDS or otherwise) that I have known and talked to and been friends with. And stories that people have shared about themselves online. Some of them are in opposite sex marriages, but if you listen carefully to them, none of them will tell you that their orientation or attraction to the same sex has been reversed into heterosexual attractions. This is especially true, I think, with men. This, in spite of years of trying out different things and prayer and pleading.

That's what I thought.

This is called anecdotal evidence -- "from my personal experience....." Is it possible that those who have been successful in making the transition are not discussing it on the internet, who think that it is none of your business and unwilling to talk about it.

These numbers may indeed be very few. The fact that they do not openly discuss it with others may be indicative on why they were successful, while the "blather mouths" are not. Just we need to be careful when we draw our conclusions based on our personal experience.