It had all the makings of a warm, personal message, celebrating both USDA and Purdue’s family traditions. It included Perdue’s wife, Mary, a photo of their kids and grandkids, and even a discussion about their favorite Christmas tree ornament.
Perdue’s message takes an unusual turn when Mary comments on the nativity scene as one of her favorite parts of Christmas, and the Perdue’s belief that “God sent his son to earth for us.” It’s that one line in the 2:16 video that has some feds questioning whether a specific religious message is appropriate in a video sponsored by a federal agency.
The difference is those previous messages do not mention anything that is specific to one religion beyond Merry Christmas or Happy Hanukah. And Perdue didn’t send a similar video message out for other holidays, though he did send a tweet out wishing people of the Jewish faith a Happy Hanukah.
One federal employee wrote to Federal News Radio saying they found the video appalling because it’s a “blatant comingling of church and state, it is a very religious commentary in what should be a non-religious federal setting, it is an exclusionary wish for Christians, and it is offensive to and perhaps creates a heightened atmosphere of exclusion and intolerance for the diverse individuals at USDA who are not of the Christian faith.”
Another federal expert who also was taken aback by the religious overtones of the message asked whether USDA used appropriated funds to make this video.
Multiple emails to USDA seeking comment on the video and whether appropriated funds were used to make the video were not returned.
The broader question is whether USDA went too far focusing on one religion instead of the more generic happy holidays message? Or in this time of over-sensitivity, is Perdue’s message innocuous and commonplace?
First, let’s set some initial understanding.
The First Amendment states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Second, federal agency rules seem to be based on a 1997 policy under President Bill Clinton. The 10-page Guidelines on Religious Exercise and Religious Expression in the Federal Workplace offers examples on what is acceptable and what isn’t. While video messages were not commonplace in 1997, the closest recommendation in the guidelines are around expressions in areas accessible to the public. In this case a video posted on YouTube.
“Where the public has access to the federal workplace, all federal employers must be sensitive to the Establishment Clause’s requirement that expression not create the reasonable impression that the government is sponsoring, endorsing, or inhibiting religion generally, or favoring or disfavoring a particular religion. This is particularly important in agencies with adjudicatory functions,” the document states. “However, even in workplaces open to the public, not all private employee religious expression is forbidden. For example, federal employees may wear personal religious jewelry absent special circumstances (such as safety concerns) that might require a ban on all similar nonreligious jewelry. Employees may also display religious art and literature in their personal work areas to the same extent that they may display other art and literature, so long as the viewing public would reasonably understand the religious expression to be that of the employee acting in her personal capacity, and not that of the government itself. Similarly, in their private time employees may discuss religion with willing coworkers in public spaces to the same extent as they may discuss other subjects, so long as the public would reasonably understand the religious expression to be that of the employees acting in their personal capacities.”
The Justice Department quotes this 1997 document earlier this year as well in its memo on protecting religious freedoms in the workplace.
Federal News Radio spoke with two attorneys to better understand whether or not the USDA Christmas message smudged the First Amendment line of separation of church and state.
Heather White is a partner with the Federal Practice Group in Washington, D.C. and expert on federal employment law.
Kevin Baine is a partner with Williams & Connolly LLP in Washington, D.C. and an expert on the First Amendment and the Establishments clause.
Baine said he didn’t see any problems with Perdue’s message.
“It is essential a secular message with one passing reference that is religious in nature because of the holiday. It would be silly to prohibit a government official from acknowledging the religious aspects of Christmas,” Baine said in an interview. “It’s a pretty mild reference at that. It’s not suggesting that the government of the U.S. is endorsing a position that Jesus was God. This is single political official sending Christmas greetings in largely secular way with one passing reference to God. It would be a problem if Congress passed a law or some official issued a proclamation that Christianity is the official religion of the U.S.”
Baine added that some believe the establishment clause means no government official can talk about God or reference a specific religion.
“That is not what the clause means. The purpose of the clause is not to prohibit the federal government from establishing a federal religion,” he said.
White said the concern from an employee rights perspective is focused on the message Perdue is sending by naming a specific religion. She agreed with Baine saying it’s probably not illegal or breaks any rules, but she said the message may be a bit tone deaf to other’s feelings.
“When you start talking about your personal beliefs it probably goes further than appropriate especially because it seems to be USDA’s official message,” White said. “Under the Equal Employee Opportunity protections under Title 7, you can’t discriminate based on religion and other protected categories. If anyone is already feeling persecuted, such as a religious minority feeling treated like second class citizen or not feeling respected, this may reinforce that feeling. And the worst case is if someone is discriminating against other religions or faiths, they might feel like they have more permission to do that based on this.”
White said while the video isn’t harming anyone, it may send a bad signal that it’s approval to take more overt actions later on either to push a Christian message or discriminate against another religion.
Baine said in some ways this is another example that the world has gotten too sensitive.
“I think we all understand the desire to make everyone feel comfortable, but Christmas is acknowledged by so many people as a religious holiday. The secretary doesn’t surrender his own rights because he’s a government official to say what he wants,” he said. “What’s over the top about that? What’s offensive? If you are Jewish or Muslim, do you feel put down because he expressed his belief? I don’t think so. He talks about the positive elements of one holiday. I guess you can make a technical argument it says USDA so it’s a government statement and it wasn’t just him, but I’d say there is a little bit of judgement whether this is an establishment clause violation. How strong is the religious message? How strong is the endorsement? Both are on the weak side.”