First Amendment Rights of Public Employees and Volunteers Related to Speech and Religion

A public employee’s claim to have experienced retaliation on the basis of expression that is protected under the First Amendment is analyzed under Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968). Under Pickering, if the plaintiff is able to make a prima facie showing that adverse action was taken on the basis of protected speech, the defendant must then show either “(1) that its legitimate administrative interests in promoting an efficient workplace and avoiding workplace disruption outweigh the plaintiff’s First Amendment interests; or (2) alternatively, the government would have taken the same actions absent plaintiff’s expressive conduct.”

Images shared on social media that gave rise to the dispute in Lathus v. City of Huntington Beach, 56 F.4th 1238 (9th Cir. 2023).

However, when the nature of a public position is such that “party affiliation is an appropriate requirement for the effective performance of the public office involved” employment may be conditioned on such party affiliation. Branti v. Finkel, 445 U.S. 507, 523 (1980). As the Ninth Circuit put it, “the First Amendment does not succor casualties of the regular functioning of the political process.” Blair v. Bethel School District, 608 F.3d 540, 545 (9th Cir. 2010). There is a continuum of public positions from the highly political — i.e., the appointed staff of an elected leader — to the essentially apolitical, such as an administrative clerk, and the analysis of whether this exception applies will depend on where on that continuum a particular position is. In Branti, assistant public defenders could not be fired for being members of the Republican party even though their new boss, a Democrat, was an elected official. 445 U.S. at 519-520. On the other hand, when an assistant prosecutor announced a candidacy for the office of the prosecutor and was fired by the prosecutor already occupying that position, the resulting First Amendment claim failed because the assistant prosecutor position was viewed as “policymaking” and the firing was simply the give-and-take of the political system. Fazio v. City & County of San Francisco, 125 F.3d 1328, 1334 (9th Cir. 1997).

If the plaintiff is not an employee but rather a volunteer for a public agency, the retaliation claim is assessed under cases like Blair and Lathus v. City of Huntington Beach, 56 F.4th 1238 (9th Cir. 2023), which hold that an appointed volunteer may be dismissed for statements that might otherwise be protected by the First Amendment when “commonality of political purpose” is an appropriate requirement for the volunteer’s services. Lathus, 56 F.4th at 1241. In Lathus, a volunteer member of an advisory board for a city was photographed at a rally with supposed “antifa” members, and was then fired from that position on that basis, and her dismissal was upheld against a First Amendment challenge.

A public employee’s claim that their right to religious freedom has been impaired by their employer by singling out the religion in some fashion will probably be evaluated under Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022). Under that standard, if a plaintiff shows that a challenged policy burdens his sincere religious practice and is not neutral or generally applicable, the burden shifts to the government to “satisfy ‘strict scrutiny’ by demonstrating its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest.” 597 U.S. at 525. That test looks to the strength of the government’s interest. Religious expression can thus be “doubly protected” under both the Free Exercise and Free Speech Clauses. Id. at 543. The courts have seen a lot of litigation of these issues in connection with vaccination requirements imposed by public employers and the ostensible religious objections to such requirements. See, e.g., Bacon v. Woodward, 104 F.4th 744 (9th Cir. 2024). However, many vaccination requirements are facially neutral and generally applicable and thus do not trigger the Kennedy standard but rather a more deferential type of review. See Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173, 1177 (9th Cir. 2021).

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RLUIPA Overview

The Religious Land Use and Institutionalized Persons Act (RLUIPA) is a federal law, 42 U.S.C.S. § 2000cc-1 et seq., that provides substantial protections for the sincere religious practices of incarcerated people. The standard it establishes is that if the government imposes a “substantial burden” on a religious practice, it must have a “compelling” governmental interest for doing so and must use the least restrictive means of advancing that interest. Effectively, RLUIPA creates a form of “strict scrutiny” for substantially burdening the religious practices of the incarcerated.

Photo by Jon Tyson on Unsplash‍. ‍

That RLUIPA standard that is considerably more favorable to the incarcerated plaintiff than a claim related to religious practices brought under the First Amendment, since First Amendment claims are reviewed under the deferential standard of Turner v. Safley, 487 U.S. 78 (1987) which lets restrictions remain in place as long as they are “reasonably related to a legitimate penological interest.”

But even under RLUIPA, it can be tricky to make out a case. The plaintiff has to meet that “substantial burden” standard, which has been interpreted as meaning the creation of "a significantly great restriction or onus upon such exercise” of religious practice. Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (internal quotations omitted). Merely being offensive to a religious belief is not a substantial burden to that belief. Navaho Nation v. U.S. Forest Service, 535 F.3d 1058, 1070 (9th Cir. 2008).

The forms of religious practice that are potentially protected under RLUIPA are fairly broad. The statute defines “religious practice” as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." § 2000cc-5(7)(A).

Courts are also allowed to consider whether an individual’s commitment to a given religious practice is sincere or is based on “some other motivation.” Holt v. Hobbs, 574 U.S. 352, 361 (2015).

RLUIPA is somewhat unusual, compared to most other civil rights causes of action, in that it only authorizes suits against “a government,” and thus “does not authorize suits against a person in anything other than an official or governmental capacity.” Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014). That is the reverse of the way most civil rights actions are pled, namely against individual actors in their individual capacity. Note, moreover, that this requirement to proceed against “a government” means that a RLUIPA claim brought by an inmate of CDCR (the California state prison system) is very likely to run directly into the Eleventh Amendment if the case is brought in federal court, since suits against an individual correctional officer in his or her official capacity are treated as suits against CDCR itself, and CDCR is protected by the Eleventh Amendment. See, e.g., Holley v. CDCR, 599 F.3d 1108 (9th Cir. 2010). So not only does a RLUIPA claim need to be pled against defendants in their “official capacities,” but if it is being brought against state correctional officers for money damages, it also needs to be asserted in state court in order to avoid that Eleventh Amendment bar. See Williams v. Beltran, 569 F.Supp.2d 1057, 1065 (C.D.Cal. July 30, 2008).

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RLUIPA and Religious-Based Dietary Accommodations for Prisoners

The “centrality” of an incarcerated individual’s religious beliefs about dietary choices should not be second-guessed by courts, as long as those beliefs are sincerely held, the Ninth Circuit concluded this week in Harris v. Cleric Muhammad, 24-3307.

A Noodly Issue: Ramen may or may not be a perfectly “clean” food, but it may nevertheless be part of a sincerely held religious Buddhist belief in a diet that requires eating “clean.”

The appellant in Harris is a Nichiren Buddhist who has a sincere belief in the need to eat “cleanly,” and he had been approved for a halal diet that was an approximation of the “clean” diet he wished to maintain. However, since the halal diet was not always exactly consistent with his dietary needs, Harris also sometimes purchased non-halal food, including ramen that contained processed ingredients, from the prison commissary.

Noting these purchases, which did not seem particularly “clean,” the prison kicked Harris off of the halal diet program, though he asserted that “ramen soups are such a staple in Nichiren Buddhist culture that adherents promulgate, and work, in ramen restaurants.” Harris sued under Religious Land Use and Institutionalized Persons Act (RLUIPA), seeking an injunction. The District Court had concluded that he was unlikely to succeed on the merits.

In a nutshell, the RLUIPA says that if a government practice “substantially burdens” the religious exercise of a prisoner it must both further a “compelling” governmental interest and be the least restrictive means of furthering that interest. The district court concluded that Harris had failed at the outset to show substantial burdening of his religious exercise since the halal diet did not entirely fit with the needs of Nichiren Buddhism anyway, and thus that the exclusion from the halal program did not affect his ability to eat the way he desired.

The Court of Appeal views it differently, stating:

it is for Harris to determine whether being on [the halal diet] satisfies Harris’s Nichiren Buddhist beliefs. And if external forces cause Harris to fall short of the exact dictates of his religion, it is for him and his conscience, not us as courts, to decide what compromises are appropriate.

The Court of appeal agrees that there may be issues in some cases as to whether a given set of beliefs is “sincerely” held, and that, for example, “RLUIPA does not entitle insincere believers in the ‘Church of Surf ‘n’ Turf’ to luxury lobster and steak dinners.” But the analysis of “sincerity” of beliefs is different from the analysis of the “centrality” of those beliefs: the former may be scrutinized by the courts, whereas the latter may not.

The Court of Appeal further notes that it is still an unresolved question in this case whether the prison’s administration of its various dietary programs is the least restrictive means of furthering its compelling interests. Maybe it is, maybe it isn’t: that’s for the District Court to determine on remand. But Harris at least is able to make out the prima facie case of having a sincere religious exercise that is burdened by the prison’s policy prohibiting him from supplementing the halal diet.

Related Post: RLUIPA Overview

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