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Religious institutions are shouting a hearty amen today, following a ruling by the California Supreme Court that allows them to discriminate against employees who advocate contradictory religious messages. By a unanimous vote, the high court on Thursday sided with a Catholic-run hospital that had fired a fundamentalist employee who insisted on trying to “save souls” at the workplace, despite warnings by his bosses to desist. “Although there is a clear, constitutionally based state policy against religious discrimination in employment,” Justice Carlos Moreno wrote for the court, “there is also a countervailing policy rooted in the free-exercise-of-religion clause of the First Amendment to the United States Constitution, as well as the comparable California constitutional right … that permits religious organizations to define themselves and their religious message. “We cannot say,” he added, “there is a fundamental and substantial public policy that prohibits a religious employer from terminating an employee because of his or her objectionable religious speech in the workplace.” Jeffrey Berman, who argued the case on behalf of the General Conference of Seventh-day Adventists as amicus curiae, said the decision goes far beyond speech, and affects religious institutions ranging from universities to kindergartens to local churches. “The people in the press talk about this being an employment case,” Berman, a partner in the Los Angeles office of Chicago’s Sidley Austin Brown & Wood, said Thursday. “But it’s more importantly a religious autonomy case — the right of religious institutions, employers or something else to engage in the free exercise of religion.” Silo v. CHW Medical Foundation, 02 C.D.O.S. 4236, was originally filed in Sacramento County Superior Court by file clerk Terence Silo, who claimed he was wrongfully fired in 1993 for proselytizing on company grounds. He sued under the state’s Fair Employment and Housing Act for employment discrimination and violation of public policy, winning $6,300 in compensatory damages, $1 in punitive damages and more than $155,000 in attorney fees after a jury trial. Sacramento’s 3rd District Court of Appeal later tossed out the FEHA claim, saying that a 1998 California Supreme Court ruling — McKeon v. Mercy Healthcare Sacramento, 19 Cal.4th 321 — exempted religious hospitals. Silo’s case pitted his state right to be protected from religious discrimination against the hospital foundation’s guarantee of free exercise of religion under the U.S. Constitution. The hospital prevailed. “Even assuming that Silo engaged in [religious] speech only during his work breaks,” Moreno wrote Thursday, “we can discern no fundamental public policy that places limits on a religious employer’s right to control such speech. “Restricting the ability of a religiously affiliated employer to control religious speech at the workplace,” he added, “would not only potentially interfere with its mission, but could excessively entangle the courts in determining what kind of religious speech is appropriate in a religious organization’s workplace.” The ruling was the second Moreno has authored since coming to the court in October, and his first on a major public policy issue. In the ruling, Moreno noted that the state Legislature in 1999 amended California law to eliminate FEHA exemptions for religious hospitals unless they limit health services to members of their own faith. But he said that had no bearing on Silo’s case because the amendments occurred after Silo’s termination. Anthony Poidmore, the Roseville, Calif., solo practitioner who argued the case for Silo, couldn’t be reached for comment Thursday. But Stephen Parrish, a partner in the San Francisco office of Milwaukee’s Foley & Lardner who represented Catholic Healthcare West Medical Foundation, called the ruling a “broad decision.” “They came down on the side of religious freedom,” he said. “The message is simply to reinforce the right [of] religious organizations to define the religious message they send.”

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