The Rhode Island Supreme Court unanimously ruled on December 19 that two Providence fire fighters with religious objections to homosexuality did not enjoy a First Amendment right to decline an assignment to staff a fire truck participating in the 2001 Pride Parade in their city. Fabrizio v. Providence, 2014 R.I. LEXIS 158. The court reversed a decision by Providence County Superior Court Justice Brian Van Couyghen, who had denied a motion for summary judgment filed by two of the defendants, the former mayor and former fire chief of Providence, who had asserted qualified immunity from liability in the case.
According to the opinion for the court by Justice William R. Robinson III, the Providence Fire Department received numerous requests each year for fire trucks to participate in parades and other public events. In 2001, Fire Chief James Rattigan, apparently in consultation with Mayor Vincent A. Cianci, Jr., decided to respond affirmatively to such a request from the Rhode Island Pride Commission, and they ordered that a fire truck and associated crew from Engine Company 7, the company stationed closest to the parade route, take part. Two of the assigned firefighters, Theodore J. Fabrizio, Jr., and Stephen J. Deninno, self-described Roman Catholics with moral objections to homosexuality, protested the assignment, but Chief Rattigan directed them to comply and they reluctantly did. They allege that they had heard that Mayor Cianci had ordered the company’s participation. After stewing about their experience for a few years, they both filed lawsuits against Cianci, Rattigan, and the City of Providence, asserting various claims of discrimination, infliction of emotional distress, and violation of their constitutional rights.
The fire fighters allege that they were subjected to various kinds of verbal harassment from parade onlookers, received threatening and obscene phone calls after the event, and suffered harassment as well from fellow fire fighters.
The case has gone back and forth between the state and federal courts, and substantial discovery has taken place. Over the course of the litigation, several of the counts have fallen out of the case. Cianci and Rattigan, who no longer occupied their official positions, filed a motion for summary judgment on grounds of qualified immunity from claims that they had deprived the plaintiffs of freedom of religion, speech and association in violation of the Rhode Island Constitution. The trial judge denied their motion, ruling that there needed to be more factual development of the case before he could rule for them as a matter of law. Because appeal as of right is not available under Rhode Island court practice from a denial of a summary judgment motion, the appellants had to petition the Rhode Island Supreme Court for a writ of certiorari, arguing that they enjoyed qualified immunity and should be dropped from the case as defendants.
The Supreme Court took the position that it was unnecessary to decide on the issue of immunity if the plaintiffs had failed to state a valid constitutional claim against the defendants, and it concluded that this was indeed the case. “Here, respondents received an order to participate in the parade because their engine company was assigned to the task; it is uncontested that such orders were common, as evidenced by Chief Rattigan’s reference to receiving ‘numerous’ requests from parade organizers for Fire Department participation and as reflected in the standard form for such requests used by the Department. After receiving this work assignment from their employer (the regularity of which has not been questioned), respondents participated in the parade merely as relatively anonymous public servants. We are unaware of any pertinent legal authority in support of the proposition that, in such specific circumstances, employees’ rights are violated if they happen to possess religious objections to the beliefs of the group with which an otherwise legitimate work assignment requires brief interaction,” wrote Justice Robinson. The court found that the fire fighters’ participation in the parade did not present a case of compelled speech on their part; staffing a fire truck in a parade is not a political statement when it is done by assignment of superiors. He continued, “The individuals chosen to carry out that assignment cannot be said to have engaged in personal speech by carrying out their work as public servants,” so they had no constitutional claim to raise.
Given that conclusion, there was no occasion to consider whether the mayor and fire chief were entitled to immunity.
The case stands for a broader principle, not specifically articulated by the court but present nonetheless. Public employees at work are carrying out the directions of their superiors and are not, as such, free actors. The same principle underlies numerous rulings, from the Supreme Court on down, that public employee speech enjoys no protection when it is “official speech,” that is, speech undertaken as part of the employee’s job. When a public employee within the scope of his or her employment speaks or engages in conduct that might be seen as expressive and thus falling within the realm of speech, it is officially the speech of the government, not the employee. The same principle underlies the proposition, now frequently contested, that government clerks cannot rely on their personal religious views or ethical objections to refuse to issue marriage licenses to same-sex couples in jurisdictions where legal bans on same-sex marriage have been struck down. As such, this Rhode Island Supreme Court decision may stand as an important precedent as religious exceptionalists step forward to challenge the obligation of objecting clerks to issue such licenses or, in jurisdictions where clerks routinely do so, to preside over such marriage ceremonies.Tags: Fabrizio v. Provident, public employee free speech rights, public employee objections to homosexuality, public employee religious rights, Rhode Island Supreme Court