The following is the opening statement of Attorney Scott Lively in Good News Employee Association v. Hicks before a three-judge panel of the Federal Ninth Circuit Court of Appeals, February 15, 2007 in special session at Stanford University Law School in Palo Alto, California. Mr. Lively did not present his arguments verbatim as stated below, because the judges immediately began to debate with him on the facts of the case. However, in the "lively" 14-minute exchange that followed, most of the points of the statement below were articulated. No ruling was made in the hearing, but we will issue a follow-up alert when one is issued by the court. [This has been an expensive case for the attorneys, who are representing the Good News Employee Association pro-bono and for ATM which is helping to cover the hard costs. Your donation to ATM via our "Donate" page would help defray these litigation expenses.]

OPENING STATEMENT

This is a case about freedom of speech. Not hate speech. Not insulting or demeaning speech. Not extremist speech. Not slurs. Not quotes from the Bible.

It about the phrase “natural family, marriage and family values.”

My clients are two African-American, Christian women who happen to work for the City of Oakland. They started the Good News Employee Association to talk about their views on the “natural family, marriage and family values.” They formed Good News at the same time that the Gay and Lesbian Employees Association was disseminating its own views on homosexuality and same-sex marriage to all City employees, with the approval of the City.

My clients have strong religious views about homosexuality and same sex marriage. However, they did not attack or criticize their Gay and Lesbian co-workers for what they had to say, even though it opposed their religious values. They did not attack or criticize their employer for allowing the advocacy of the gay position in the workplace. No, they met the challenge to their values with tolerance. They said, in essence, “This is a free country. Everyone has a right to believe what they choose and say what they believe. And we also have a right to say what we believe.”

So Regina Rederford and Robin Christy sat down and tried to think how to advocate their beliefs in the most positive possible terms, to add in a constructive way to the diversity of their workplace. They chose the words “natural family, marriage and family values” as a phrase that captures the heart of their beliefs without proselytizing or putting others down. They asked permission to circulate an invitation containing these terms to their co-workers using the same city-wide e-mail system that the Gay and Lesbian group had used but were denied. They then put the phrase on a flyer announcing the start of the Good News group and posted it on the employee bulletin board -- alongside flyers with every sort of message from anti-war slogans to ads for puppies.

The flyer stayed on the bulletin board for six weeks until one lesbian co-worker, Judith Jennings complained to the boss. Immediately the flyer was torn down and Defendant Joyce Hicks circulated a memo to the whole agency calling the flyer “homophobic” and threatening possible termination for anyone who dared to post such materials in the future.

Homophobia is defined, as Hick later attested, as irrational hatred and fear of homosexuals. In other words, she interpreted the phrase “natural family, marriage and family values” -- words that implicate the sincerely held religious beliefs of millions of Americans -- as hate-speech.

Later in her deposition, Hicks admitted that any words which disapprove of homosexuality are “homophobic” and all similarly exclusionary words should be banned from the employee bulletin board. This list, she said, includes the word “men,” because it excludes women, and the word “women” because it excludes men.

Defendant Hicks also implied that the City policy would prevent the language of California Family Code 308.5 (the legal definition of marriage) from being posted on the board.

The policy which Hicks invoked, Administration Instruction 71, was approved and implemented by Defendant City Manager Robert Bobb. AI71 prohibits conduct by City employees that “denigrates, demeans or shows hostility or aversion towards an employee because of his or her membership in a protected group.”

The U.S. Supreme Court has restricted some speech in the workplace. Both sides suggest that Pickering v. Board of Education provides the standard to be used here. The Pickering balance test recognizes that employees have a constitutionally protected right to comment on matter of public concern in their workplace, but that employers can restrict speech that disrupts the workplace.

Here, there is no question that marriage and family are matters of public concern. The flyer in question itself frames these as matters of public concern, stating

“Good News Employee Association is a forum for people to Faith to express their views on the contemporary issues of the day. With respect for the Natural Family, Marriage and Family Values.”

The question then is whether the above statement can reasonably be construed as a workplace disruption.

This court in applying Pickering has ruled that some speech against homosexuality constitutes a workplace disruption sufficient to suppress that speech.

In Lumpkn v. Brown, the Reverend Lumpkin’s quotation from Old Testament that men who have sex with other men deserve death was upheld as proper ground for his dismissal from the City of San Francisco’s Human Rights Commission.

In Peterson v Hewlett-Packard Co., Peterson’s refusal to take down a posting of the same Scripture and other passages in his cubicle was likewise ruled a proper basis for termination.

These cases were raised by Defendants but they are easily distinguishable from the instant case.

First, they involve quotations from the Bible that directly condemn homosexuality in the strongest possible terms. In contrast, the phrase “natural family, marriage and family values” is not a Bible quote, neither is it a condemnation of any person or behavior. It is a list of discussion topics.

Second, the Plaintiffs in both of these cases admitted that the purpose of their speech was to condemn homosexuality. However much one may respect the Bible (I personally hold it in the highest respect), it is not unreasonable to conclude that the use of select scriptures to publicly condemn the lifestyle of coworkers is disruptive to a workplace.

In contrast, the express purpose of the Good News Employee Association was to open a dialogue among people of faith on the contemporary issues of the day. This is the opposite of creating workplace disruption and conflict. Indeed, opening a dialogue is usually the first step used by mediators to resolve conflicts and sooth disruptions.

Defendants have made much ado about the private beliefs of my clients; that they believe homosexuals are sick people comparable to weeds in a garden. These are dishonest mischaracterizations, designed to poison the well against my clients. Their actual views are known to Defendants and are best represented in the old saying “love the sinner, hate the sin.”

However, if Regina and Robin held these or more extreme views, it would have no bearing on this case. Their private religious beliefs are not on trial here. This is about their actual speech in the workplace: “natural family, marriage and family values.”

The Peterson case is also distinguishable in that Peterson’s employer was a private company, not a government agency such as the City of Oakland. In addressing this distinction this court, cited its own opinion in Tucker v. California Dep’t of Educ., 97 F.3d 1204 in which

[W]e expressed concern that a state agency’s prohibition on religious posting in the workplace constituted viewpoint discrimination in violation of the First Amendment because it “silenc[ed] religious perspectives on controversial subjects.” We illustrated these concerns by explaining the prohibition’s potential impact on a hypothetical sign “stating that ‘gay marriage is a sin,’ and quoting passages from the Bible to support that proposition.” Id at 1216. Hewlett-Packard, however, is a private employer….We do note, however, that an employee’s…advocacy regarding a controversial public issue invokes different considerations than his expressive activity intended to demean or degrade co-workers.

This not only distinguishes Peterson from the instant case, it also acknowledges that advocacy of a controversial public issue is a different category of expressive activity than that intended to demean or degrade co-workers.

In Summary, then, the workplace speech of my clients is not similar to that which this court has restricted in prior rulings, and in fact is less aggressive against the “gay” and lesbian position that what Tucker has suggested would be protected by the First Amendment. For the court to rule against the Good News Employee Association would be to silence all speech from the pro-family viewpoint in the workplace. We therefore ask the court to overturn the decision of the District Court.