Arizona Attorney General Brnovich Defends the First Amendment
Ken Blackwell  | August 29, 2016

The Freedom from Religion Foundation folks must have been licking their chops the day they heard about the Arizona Department of Economic Security (DES) director’s emails to his employees. This was going to be easy. The Wisconsin-based foundation would whip up a letter alleging a constitutional violation of the separation of church and state and Arizona officials would fall all over themselves to admonish DES Director Tim Jeffries.

After all, he had used the state email system to send out an email to employees informing them that he would be going to Lourdes as a member of the Order of Malta to serve the “seriously afflicted and dying.” Not only that, but he offered to carry employees' "special intentions" to Lourdes if they wrote to his assistant. Jeffries even ended his emails with the Latin phrase “Ditat Deus.” (“God Enriches”).    

"We request that you immediately cease promoting religion through DES email,” the foundation’s Madeline Ziegler wrote Jeffries in June, “and do not involve DES employees in any future religious trips you take."

The foundation wouldn’t even have to go to court. A stout letter would do. Worked all the time.

But not this time. The Freedom from Religion Foundation ran up against two Arizona lawyers with a sharp legal minds and backbones. The August 10th response of Arizona Attorney General Mark Brnovich and Division Chief Counsel Paul Watkins to Ziegler is a masterwork of First Amendment jurisprudence. They have set out a clear -eyed, common-sense position that should make Arizonans proud – and more free – and serve as a template for officials elsewhere who are facing this kind of anti-religious bullying.

Their conclusion: Jeffries probably should not have involved his assistant in collecting the special intentions, but Jeffries’ emails (there were trip updates) were "private speech, did not bear the endorsement of the State, and did not violate the Constitution."

Brnovich and Watkins pointed out what the foundation’s Zeigler had herself acknowledged: Jeffries’ emails were “personal.” The state clearly allows employees to use its email system to send and receive personal emails. Many promote charitable causes. In writing about the charitable purpose of his trip, Jeffries had made clear that employees should only send in their “special intentions” if they felt comfortable doing so. There was no suggestion that the state (DES) was sponsoring or endorsing Jeffries’ trip or his request to carry petitions to Lourdes.

Jeffries was clearly not proselytizing or evangelizing, but did he somehow violate the separation of church and state, because his emails touched on religion and the sacred? It’s here that Watkins’ analysis becomes both sublime and devastating. Why should Jeffries be prohibited from using the state email system on constitutional grounds simply because his private charitable activity has a religious foundation? He was simply participating in regular on-going office discourse.

True, the charitable activity mentioned in Jeffries’ emails may have had a religious underpinning. But is the foundation suggesting that the state delve into the religious or non-religious foundations of all charitable activities or trips mentioned in employee emails? Or that emails on personal non-religious trips should be allowed and emails on personal religious trips forbidden? All this would mean the government policy on personal emails is not neutral. It would be discriminating between religious and non-religious charitable activities. Red Cross activities would be fine. Order of Malta charitable activities would be banned. Such a policy would, in fact, violate the U.S. Constitution’s First Amendment protections.

In pointing out the legal morass Zeigler’s logic would lead state officials into, Brnovich and Watkins ask her to imagine that Jeffries had instead written to employees about an upcoming trip to Green Bay’s Lambeau Field.

“[A]s any Wisconsin organization is likely aware, many people venerate Lambeau Field as a sacred shrine to the Packers (the Packers’ official website proudly refers to Lambeau Field as ‘Hallowed Ground’ …). Would your constitutional objections remain if Mr. Jeffries was rhapsodic about his reverence for the ‘hallowed ground of Lambeau Field and offered to prayerfully whisper each employee’s name while watching video highlights of Aaron Rodgers’ successful ‘Hail Mary’ passes from the 2015-16 season?” Wicked. Just wicked.

The Arizona Attorney General’s office had one more play up his sleeve. Remember that Latin phrase “Ditat Deus.” (“God Enriches”) in Jeffries’ emails? Turns out it’s Arizona’s state motto.

As they might say at Lambeau Field, Mark Brnovich and Paul Watkins just hit pay dirt!

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