This Is Why It’s Good To Have A Written Bill Of Rights

A case from the U.K. demonstrates why it's a good thing to have a strong, written, Bill Of Rights.

Rod Dreher is apparently upset over this case out of England:

A housing manager has been demoted, and his salary slashed, after he criticised a controversial new gay rights law.

Adrian Smith, a Christian, was found guilty of gross misconduct by his publicly funded housing association for saying that allowing gay weddings in churches was ‘an equality too far’.

He posted the comment in his own time, on his personal page on the Facebook website, which could not be read by the general public.

But after a disciplinary hearing, he was downgraded from his £35,000-a-year managerial job to a much less senior £21,000 post – and avoided the sack only because of his long service.

(…)

Mr Smith has worked for 18 years for Trafford Council and Trafford Housing Trust, which manages more than 9,000 homes in Sale, Greater Manchester.

But he now finds his career in tatters over a comment he wrote on his personal Facebook page one Sunday morning in response to a BBC story headlined ‘Gay church “marriages” get go-ahead’. The story referred to Government plans to lift the ban on homosexual couples holding civil partnerships in churches and other religious settings.

Mr Smith, whose Facebook profile identified him as working for the Trust as a housing manager, commented: ‘An equality too far.’

A few hours later, one of his Facebook friends, a work colleague whose identity is not known to The Mail on Sunday, posted: ‘Does this mean you don’t approve?’

The following evening after work, Mr Smith, who attends an evangelical church in Bolton, responded: ‘No, not really. I don’t understand why people who have no faith and don’t believe in Christ would want to get hitched in church.

Dreher comments:

Move along, nothing to see here. It didn’t really happen, and if it did, this man, History’s Greatest Monster, must have deserved it for his thoughtcrime.

There are a few things worth noting here, beginning with an excerpt from the article that Smith was commenting on:

Ministers are expected to publish plans to enable same-sex couples to “marry” in church, the BBC has learned.

Equalities Minister Lynne Featherstone is to propose lifting the ban on civil partnerships taking place in religious settings in England and Wales.

There are no plans to compel religious organisations to hold ceremonies and the Church of England has said it would not allow its churches to be used.

Marriage between people of the same gender is not legal in the UK but civil partnerships were introduced in 2005 to give couples the same legal protection as if they were wed.

(…)

Marriage between people of the same gender is not legal in the UK but civil partnerships were introduced in 2005 to give couples the same legal protection as if they were wed.

The proposals were welcomed by gay rights campaigners but may raise the ire of many churchgoers.

Mr Tatchell said: “Permitting faith organisations to make their own decision on whether to conduct same-sex civil partnerships is the democratic and decent thing to do.

“The current law prevents them from doing so, even if they want to. No religious institution will be forced to perform civil partnerships if they do not wish to do so.”

So, no religious institution in the United Kingdom would be forced to perform same-sex civil partnership ceremonies, and at least part of the reason for the law appears to derive from the relationship between the government and the Church of England, which is far different from any thing we have in the United States. What Smith was disagreeing with, then, was a law that would permit churches to make their own choice on the issue.

Regardless of the merits of his position, though, he clearly has a right to express it. The difference is that, in Great Britain, Freedom of Speech doesn’t receive the same protection it does here, due in no small part that they don’t have an equivalent to our First Amendment. In this country, punishing a public employee for expressing a political opinion in a non-work forum would clearly be impermissible. Smith would be protected here, or at least he should be. As much as I support same-sex marriage, I would oppose any effort to fire someone his his position because they spoke out against it. That’s not how a free society works. Of course, if Smith were a private employee, the situation would be completely different.

I’ve seen paranoia like Dreher’s before, though I’m a little surprised to see it coming from him since he has typically struck me as a rather reasonable Christian conservative. Like many other opponents of same-sex marriage, though, Dreher seems to fear that letting two men or two women formalize their relationship will lead to some unprecedented assault on the religious and free speech rights of those who don’t believe that civil marriage should be extended that far. There’s no rational reason to believe that this would happen. For one thing, as I mentioned, the First Amendment would prohibit most of the government retaliation that Dreher seems to fear. No church in the United States will ever be forced to perform a same-sex marriage, for example. Similarly, an American citizen who expresses disagreement with same-sex marriage isn’t going to be subject to the kind of retaliation that Smith suffered in England for comments that are, in the end, relatively innocuous.

This is the value of having a written Bill of Rights, and the reason why paranoia like Dreher’s is entirely misplaced.

FILED UNDER: Law and the Courts, Religion, US Politics
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed for too young in July 2021.

Comments

  1. Murray says:

    I am not a lawyer but it seems to me nothing in the Bill of Rights prevents an employer from sanctioning an employee for breaking the company’s code of conduct. Which is the case here.

    Not that I necessarily excuse the agency, but public servants in the US also have such clauses in their contracts as do private companies. I am quite sure that an Exxon employee who would be found criticizing his employer’s lack of concern for the environment on his Facebook page would be handed a pink slip quite rapidly.

  2. Murray,

    The Bill of Rights doesn’t apply to private entities, only the government

  3. Console says:

    The first amendment itself provides little guidance on this. The jurisprudence on the issue of government officials free speech rights is a bit more complicated than just saying “freedom of speech” and walking away. And prior to the 60’s you DIDN’T have the right to not to be fired for your political beliefs as a government employee.

    In short, the right to speak your mind is separate from your conditions of being a government employee. Conflating the two requires a set of rules that the first amendment has dick all to say about. Don’t get too uppity about a right that requires the same type of enforcement that a right in the UK does (judges making shit up). America isn’t really that unique. Ultimately, the constitution is still just a piece of paper.

  4. Murray says:

    @Doug Mataconis:

    It applies to govt as a enforcer of laws, not as employer. You can’t be put in jail or finned for publishing homophobic remarks, but you may be sanctioned or fired for damaging your employer’s image.

  5. @Murray:

    Public employees have significantly more rights than private employers do. A public employee, as in a civil servant, generally cannot be fired or disciplined for expressing a political opinion in a non-work setting, A private employee can.

  6. Console says:

    @Doug Mataconis:

    Sorta.

    If the press secretary got caught on tape saying “Obama is an idiot” then he’d get fired. And it wouldn’t be unconstitutional because political affiliation is material to the job of being the president’s press secretary.

  7. @Console:

    Clearly there are people who service in positions where speaking out like that isn’t permitted. And some Federal Employees, members of the military for example, are prohibited from engaging in certain forms of political advocacy for understandable reasons.

    For a person such as Smith who seems to be little more than a mid-level civil servant, though, such conditions of employment usually don’t exist.

  8. Console says:

    @Doug Mataconis:

    Sucks to be him. Meanwhile, we in America, legally screw over whistleblowers all the time. I don’t mean to go off on a tangent, because this thread is ultimately about some homophobe in the UK, but I have a pet peeve about the importance my friends on the right seem to place on words on a piece of 200 year old parchment.

    Fact is, as a government employee, I can’t go from the first amendment and magically derive what I can and can’t say in public in 2010 America. A written constitution a just a small piece of the pie, not a be all end all of liberty.

  9. ponce says:

    In this country, punishing a public employee for expressing a political opinion in a non-work forum would clearly be impermissible.

    Really?

    Would the U.S. military allow a vocal neo-Nazi to continue serving?

  10. Murray says:

    @Doug Mataconis:
    A working contract is a working contract, public or private. As I said I am not a lawyer so there might be “technical” rights but in practice I’ve worked for public and private entities both as employee and contractor and there is no difference. And in my opinion there shouldn’t.

    Besides, we are not talking about a disagreement on tax levels or depth ceiling. We’re talking about a dude making homophobic comments. Do you really believe that a public servant going on a racist rant on his Facebook page wouldn’t face any consequences? I don’t think so, even less an employee of a private entity with partial public funding as is the case here.

    And again, I don’t agree with the treatment the guy received. My point is I also disagree with your assessment, expressed in your headline, that a written Bill of Rights would have prevented it.

  11. Al says:

    @ponce: That would bring security clearance issues into play. Even a private has the lowest level clearance (restricted, I think) and a vocal neo-Nazi would probably have trouble carrying any clearance.

  12. James in LA says:

    Oh, let the man speak! One fruit of the 1A is that it tells us where the crazy people are so we know where not to visit.

  13. John Burgess says:

    It just so happens that there’s a post quite on the topic over at Volokh Conspiracy just now:

    District Court Opinion on the First Amendment and Public University Professors

    The post includes a useful discussion of GARCETTI et al. v. CEBALLOS, which is as current as it gets when it comes to the intersection of the First Amendment and employment.

    While you’re at Volokh, you can also check out a current hullabaloo about a university professor condemning homosexuality in a class, and in reply to a direct question, to a homosexual student. That’s pretty close to the OT, too!

  14. PD Shaw says:

    The notion that the general rule in governement service is that your personal beliefs, expressed or not, are your own, is pretty much a basic progressive idea from the early part of the twentieth century. People who don’t think that’s kewl, may need to consider the possibility of the shoe being on the other foot.

  15. Trumwill says:

    My understanding is that the protection of a government employee from speech sanction is statutory and not constitutional. Therefore, the mainpage clip about how important it is to have the Bill of Rights spelled out, would not apply here.

    That being said, I think that public employees should be (broadly, though not entirely) free from speech sanction.

    And I do think it’s a good thing that we have the Bill of Rights spelled out.

    But I don’t think this case is good evidence for it.

  16. Eric Florack says:

    The Bill of Rights doesn’t apply to private entities, only the government

    Indeed; it was intended solely as a limit on government power. What blurs this discussion, however, is that in the UK about everything is either owned by the government or regulated to the point where it’s pretty much as good as ownership.

    Now, granted that heere in the states, we’re getting to that tipping point as well.

  17. mantis says:

    What blurs this discussion, however, is that in the UK about everything is either owned by the government or regulated to the point where it’s pretty much as good as ownership a silly figment of my imagination.

    FTFY

  18. John Burgess says:

    @mantis: The UK is still in the process of privatizing, with numerous QUANGOs still holding sway over things that would be purely private in the US. But as Eric correctly pointed out, government regulation in the UK is much farther reaching than one might think necessary.

  19. Argon says:

    Rob, Dreher doesn’t like gay marriage because he thinks it’s icky. Seriously. The man has an irrational, visceral dislike of things gay. Check out his old posts at Beliefnet. Otherwise, he’s generally sane.

  20. An Interested Party says:

    What blurs this discussion, however, is that in the UK about everything is either owned by the government or regulated to the point where it’s pretty much as good as ownership.

    Now, granted that heere in the states, we’re getting to that tipping point as well.

    What a crock of $hit on both counts…there is no evidence that things in the UK or here are as Eric claims…yet he continues chugging on, throwing out wild, unsubstantiated claims as if they are facts…

  21. anjin-san says:

    in the UK about everything is either owned by the government or regulated to the point where it’s pretty much as good as ownership.

    Do you actually believe that? if you do, think about getting professional help. Seriously.

  22. Rob in CT says:

    It’s as if Thatcher never happened…

  23. PD Shaw says:

    @Trumwill: The First Amendment protects government employees from being demoted. Here is a link to the case that said the First Amendment right to political expression protected non-high level employees from the patronage system. The government can defend on the necessity of the specific job position.

  24. Liberty60 says:

    Honestly, I am a bit confused on where the Right is on this issue;

    on the one hand, they advocate for smaller and smaller government employment;
    They also claim that government employees enjoy stronger First Amendment protections than private sector ones.

    So…..in the ideal conservative world, no one would work for the government, we would all be private sector employees, and have…a weaker right to express our opinions?

    Not sure where you are all going here.