From Fields v. City of Tulsa (N.D. Okla. Nov. 29, 2011):
This suit arises out of a dispute between Officer Fields and the Tulsa Police Department. Fields was instructed to have officers under his command attend a “Law Enforcement Appreciation Day” being hosted by the Islamic Society of Tulsa at a local mosque. Officer Fields refused to attend the event, and refused to require his subordinates to attend. Officer Fields was subject to discipline as a result….
Under the Oklahoma Religious Freedom Act (“ORFA”), “no governmental entity shall substantially burden a person’s free exercise of religion” unless that burden passes strict scrutiny. 51 Okla. Stat. § 253. The ORFA defines “substantially burden” as “to inhibit or curtail religiously motivated practice.” 51 Okla. Stat. § 252.4 The Oklahoma Court of Civil Appeals addressed a claim brought under the ORFA in Steele v. Guilfoyle, 76 P.3d 99 (Okla. Civ. App. 2003).5 The court found no substantial burden when an incarcerated Muslim plaintiff was forced to share a cell with a non-Muslim. The Muslim plaintiff “complained his cellmate eats pork and has photographs of beings with souls hanging in their cell. This, Plaintiff contended, defiles his cell and prevents angels from entering” Id. at 100. Despite the plaintiff’s objections to spending time in a cell with someone whose religious beliefs he did not share, the court found “Defendant’s actions in no way prohibit Plaintiff from practicing his religion, [and] praying or meeting with fellow Muslims.” Id. at 100-01.
Fields argues his religious beliefs were substantially burdened because the defendants punished him for refusing “to engage in conduct that was contrary to his religious beliefs (i.e., attending the place of worship of another religion and being subjected to proselytizing by that religion).” (Dkt. #22, p.10). However, nothing in Fields’ proposed Second Amended Complaint suggests that Defendants’ actions in any way inhibited or curtailed Fields from practicing his religion.
First, the order directing Fields to attend the event did not inhibit or curtail Fields’ religiously motivated practice. Exhibit 1 to Fields’ Proposed Second Amended Complaint is a flyer inviting “All Tulsa Law Enforcement to LAW ENFORCEMENT APPRECIATION DAY.” It invites law enforcement to a “Casual Come & Go Atmosphere” from 11:00am-5:30pm to “[c]ome enjoy a Buffet of American & Ethnic Foods,” to take a Mosque Tour “15 minutes or an hour- it’s up to you!”, to “[w]atch the 2-2:45pm weekly congregational prayer service,” and “[m]eet Local Muslims & Leadership.” It also contains the following statement: “Presentations upon request: beliefs, human rights, women[.] All questions welcome!” Although Fields alleges that officers who attended the event were subjected to proselytizing, nowhere does he allege that such presentations were mandatory or that any such presentations would have inhibited or curtailed Fields from practicing his sincerely held religious beliefs.
Second, the adverse employment actions alleged in the Proposed Second Amended Complaint cannot be said to have violated Fields’ rights under the ORFA. The ORFA protects Oklahomans from government action inhibiting or curtailing religiously motivated practice. It does not provide a police officer a claim against his employing city for requiring him to attend a Law Enforcement Appreciation Day hosted by a faith other than his own or for disciplining him for his refusal to do so.
This sounds right to me: Religious exemption regimes (see here for more on such regimes) generally require the government to make a strong showing of need before substantially burdening a person’s religious practices — but the plaintiff has to state that the government action actually barred him from doing something that he felt religious compelled or at least motivated to do, or required him to do something he felt religiously prohibited from doing. Simple disapproval of a proposed action that touches religion would not qualify.
And given these facts, I have no sympathy for Fields. Part of his job as a police officer, and especially as a police captain, is to strengthen the police department’s relationship with the community, and with its various subcommunities. The police department, of course, wants citizens to comply with the law and with the lawful orders of the police, which is easier if the citizens perceive that the police respect them and their subcommunity. But the police department also want citizens to go beyond what is legally required to affirmatively help the police, for instance by providing information about crimes that the police are investigating, or about crimes that the police don’t even know about. That’s much more likely when the police are seen as respectful and welcoming to the subcommunity, and when the police and community members are personally acquainted.
Don’t like some group, for religious or ideological reasons? Put on a good face and pretend; certainly don’t spurn their amicable invitations. And if you think the community harbors some dangerous terrorists (which seems to be part of the claim in Fields’ Complaint), then that’s all the more reason for you to have a relationship with the community that might get you more tips about such terrorists.
To be sure, the court’s legal analysis leaves open the question of what would have happened if Fields had sincerely claimed that his religious forbade his going inside. (Some Jews, for instance, apparently believe that they generally may not go into a church.) If that were so, a substantial burden on religious practice would indeed be present. The question then would be whether the government has to show that requiring the police officer to go to the event is necessary to serve a compelling government interest, as the religious exemption statute seems to be mandate for all sorts of government action, or whether the statute should be read as implicitly incorporating the lower Title VII standard when the government acts as employer. (Under that Title VII standard, the government may prevail simply by showing that exempting the police officer from the policy would impose an “undue hardship” on it, which has been read as meaning a more than de minimis hardship.) For more on this question, see this section of my Intermediate Questions of Religious Exemptions — A Research Agenda with Test Suites (1999).
If in such a hypothetical situation of a police officer feeling religiously forbidden to enter another faith’s house of worship — again, not the situation here — the Title VII standard would be used, either under the state religious exemption statute or because the plaintiff sued under Title VII itself, I suspect the government would easily win. As I mentioned, maintaining good relations between the police and various parts of community is very important. A publicly known refusal of a welcoming gesture from community leaders would substantially undermine the police department’s mission. And even a quiet refusal by a police captain might have the same effect, because the captain would lose the opportunity to build potentially helpful public confidence and public-police connections; so would a refusal to order subordinates to go to the event, because even though higher police officers could instead issue such an order themselves, the refusal would send a message to police officers that may discourage them from enthusiastically participating in the event. (Whether a rank officer would be entitled under Title VII to quietly decline to go such an event for religious reasons, for instance in a context where lots of other officers weren’t going there for other reasons, and the reason of his absence wouldn’t be known to others except his superiors, is a different matter; see this discussion for references to some related cases.) If in such a hypothetical situation the “necessary to a compelling government interest” standard would be used, the matter would be less clear.
Note that Fields’ Free Exercise Clause and Establishment Clause claims remain in the case; the question at this point was simply whether the court should let Fields amend his initial Complaint to also add the Oklahoma Religious Freedom Act claim. (Courts have the power to refuse such amendments if the courts conclude that the new claims would be clear legal losers.) But I’ve looked at the Complaint and it’s hard for me to see how those claims can prevail. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.