The Primacy of Free Exercise in Public-Employee Religious Speech

This Note addresses the question left open by the Court and highlighted by Justice Thomas: under what standard of review should courts review public-employee religious expression protected by both the Free Speech and Free Exercise Clauses? This Note begins by introducing the doctrine of government-employee speech. Then, this Note surveys proposals within existing scholarship that address how courts ought to treat public-employee religious expression. In doing so, this Note evaluates the following proposals: (1) applying Pickering balancing as is; (2) applying a modified version of Pickering balancing; (3) replacing Pickering balancing with intermediate scrutiny; (4) the Holmesian approach: deeming public-employee religious expression wholly unprotected; and (5) free exercise primacy: applying the existing free exercise scrutiny regime to public-employee religious expression. This Note argues in favor of the last approach—free exercise primacy. Courts should apply the existing free exercise scrutiny regime to public-employee religious expression. Each alternative is seriously flawed. Pickering balancing should not be extended to free exercise claims for reasons both general to Pickering balancing and particular to religious exercise. As a general matter, Pickering balancing is overly malleable, as it asks judges to balance incommensurate goods against one another. Additionally, by essentially constitutionalizing the heckler’s veto, the doctrine runs counter to fundamental First Amendment values. Furthermore, aspects of Pickering balancing are particularly ill-suited for free exercise claims. Pickering’s public-concern inquiry is built to capture audience-centric free speech justifications—not individual-centric religious liberty justifications. Modified versions of Pickering balancing and intermediate scrutiny fail to improve upon the doctrine’s malleability. Deeming public-employee religious speech wholly unprotected—the Holmesian approach—unjustifiably singles out religious expression as particularly unworthy of protection. Applying the existing free exercise scrutiny regime is not a perfect solution, but it is better than any viable alternative