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October 18, 2017

The ACLU of Virginia today penned a letter to Beford Sheriff Michael J. Brown to raise concern over the sheriff's expressed intention to put bumper stickers that say "Law Enforcement Stands and Places Hand Over Heart for the National Anthem. We Kneel When We Pray" on government-owned vehicles (deputy's patrol cars). Acknowledging the sheriff's constitutional right to use campaign funds to express any message that he chooses, the ACLU of Virginia nonetheless stressed that as a public official, Sheriff Brown does not have the right to "choose to emblazon state or county owned vehicles with an overtly religious and implicitly Christian message ," wrote the letter.

Citing the Establishment Clause of the First Amendment, the ACLU of Virginia reminded Sheriff Brown that law enforcement officers may not use their official positions or government property to proselytize the people with whom they interact as part of their official duties, or, even in much less coercive settings, to endorse religious messages or otherwise promote religious activities (such as through bumper stickers or decals, their business cards or signs posted in police facilities). The letter gave examples of several major cases, including McCreary County v. ACLU of Ky (2005) and Santa Fe Independent Sch. Dist. v. Doe (2000), where the courts repeatedly affirmed the separation of church and state, one of the two tenets of American democracy. 

"The decision to place bumper stickers with a message such as is included on the billboard you sponsor must be analyzed and considered in light of all the circumstances," stated the letter. "There is no question that the bumper sticker on an official vehicle is government speech or that it is religious in nature. A true commitment to community and constitutionally centered policing would counsel against actions that appear to be or are said to be intended to make a statement about the Christian faith of a department’s leader or its force. Such actions send a message of exclusion to applicants for employment, employees and community members who do not share the favored religious faith, and can leave people with the impression that policing by the department will be biased in favor of people of one faith tradition over others."

In addition, the ACLU of Virginia cautioned Sheriff Brown that displaying religious messages on department's vehicles may violate the religious nondiscrimination requirements of Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on religion in advertising, recruiting, and hiring; as well as coerced participation in religious activities on the job. "When an agency says that 'law enforcement kneels when it prays' it may be seen as sending a message that only Christians need apply and raising a question about whether employees will be coerced to participate in religious activities with which they do not agree or suffer some adverse consequence at work," wrote the letter.

"Moreover, as public employers, law enforcement agencies have an obligation, not shared by private employers, to avoid the appearance of endorsing religion. This gives public employers greater authority and responsibility to exercise control of religious displays even by individual employees in public spaces."

The ACLU of Virginia advised Sheriff Brown and government officials who have a role in approving the budget to consider carefully the potential legal claims that can be raised, as well as potential adverse consequences on community policing and taxpayers that allowing law enforcement's religious displays would entail. "Law-enforcement and local government officials who wish to build trust between the public and their law enforcement agencies should be cautious about any religious display that constructs a barrier between their department and any people in their communities, including those who do not share the department leader’s faith or the majority faith in the department’s community," the letter concluded.

Update: On the same day, Oct. 18, Sheriff Brown responded to the ACLU of Virginia's letter in two separate email messages, reassuring that he has no intention of placing religious displays on government properties. His email responses can be viewed here and here.