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Religious freedom, but for whom? That was the question during oral arguments Tuesday at the California Supreme Court in the case of Terence Silo, a practicing “born again” Christian fired from his job as a file clerk at the Catholic Healthcare West Medical Foundation for trying to “save souls” while on the clinic’s premises. Silo sued for wrongful termination and won on the grounds that the state constitution prohibits religious discrimination. But his Sacramento, Calif.-based employer, a nonprofit Catholic organization, insists it is protected from suit by the U.S. Constitution’s guarantee of free exercise of religion. With the justices trying to decide which constitutional right trumps the other Tuesday, even the lawyers appeared uncertain as they advocated their separate clients’ positions. “In this case, the rights are somewhat equal,” Stephen Parrish, a partner in the San Francisco office of Milwaukee’s Foley & Lardner, told the justices. “So I think that’s the real crux of the issue. They are competing interests.” Silo v. CHW Medical Foundation, S095918, began in April 1993 when Silo, who “gave his life to Christ” five months earlier, was fired for proselytizing during the workday on company grounds. Silo had limited his soul-saving mission to breaks and with people who were interested, but his employers felt his actions didn’t comport with the Catholic clinic’s mission. Silo sued for employment discrimination in violation of California’s Fair Employment and Housing Act and for violation of public policy. A jury awarded only about $6,300 in compensatory damages and $1 in punitive damages, but gave him more than $156,000 in attorney fees pursuant to the private attorney general doctrine, which permits fees for lawyers who win cases serving the public interest. The 3rd District Court of Appeal tossed out the FEHA claim, saying that a 1998 California Supreme Court ruling — McKeon v. Mercy Healthcare Sacramento, 19 Cal.4th 321 — exempted religiously incorporated hospitals. But the Legislature subsequently amended the law in 1999 to eliminate such exemptions unless religiously affiliated hospitals limit their health services to members of their own faith. Even so, Silo went forward because the appeal court let stand the lower court verdicts on public policy and attorney fees. On Tuesday, the justices’ questions left the impression that they might be leaning toward Catholic Healthcare West’s right to free exercise of religion. Chief Justice Ronald George raised questions indicating that he felt there might be a degree of proselytizing that reaches the level of harassment, enabling companies to fire employees. George also questioned whether religiously affiliated hospitals could go so far as to prohibit the wearing of a Jewish Star of David or a Muslim crescent. Parrish said yes, but his ally, Jeffrey Berman, a Los Angeles lawyer representing the General Conference of Seventh-day Adventists as amicus curiae, said no. “So you differ from Mr. Parrish on that point?” George asked. “Only slightly,” Berman responded. Justices Carlos Moreno and Kathryn Mickle Werdegar had similar queries — Moreno about employees wearing pro-abortion buttons or “gay day” shirts, and Werdegar wondering about religious head wraps and about knives, such as those worn by Sikhs. Parrish said he thought the items suggested by Moreno could be prohibited because they conflict with the clinic’s “message,” while Anthony Poidmore, a Roseville, Calif., solo practitioner representing Silo, told Werdegar head wraps and knives couldn’t be banned by employers, religious or not. “In a situation like [the one at issue], I don’t think you can. I don’t think the employer’s right goes this far,” he said. “If it was a seminary, it might.” At one point, Justices Joyce Kennard and Ming Chin cited Knight v. Connecticut Department of Public Health, 275 F.3d 156, in which the 2nd U.S. Circuit Court of Appeals in December upheld the agency’s suspension of a nurse consultant who was sharing her fundamentalist beliefs with uninterested AIDS patients. “If a public agency can prevent proselytizing, why can’t a religious organization? Chin asked Poidmore. “Shouldn’t a religious employer have more rights to prevent proselytizing on its property?” Kennard seemed to be playing devil’s advocate at times. She speculated that Silo’s limiting of his actions to certain places and times might protect him from termination, but then asked his lawyer what it would mean if the court came down with a pro-employee ruling. Wouldn’t that, she asked, require a Jewish hospital to retain a “born again” Christian who told all his co-workers they should convert because “those of the Jewish faith killed Jesus?” Not if the facility is more secular than religious in nature, Poidmore said, and the employee in question isn’t approaching people who aren’t interested or during work hours. The exchange of ideas, he said, can make people uncomfortable, but termination should occur only if employees’ actions “get to the point of harassment.” Afterward Foley partner Parrish and senior counsel John Douglas wouldn’t speculate on their chances. But they said they eagerly await any clarification of the public policy issues. “The employer is supposed to be on clear notice that [his] actions are illegal,” Douglas said. “But,” Parrish added, “it is not clear” under current law.

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