This past May, six firefighters from Parma Heights, Ohio, were directed to attend a "Civic Appreciation Day" ceremony as part of the Parma Heights Baptist Church's regular Sunday service that day. This Civic Appreciation Day observance wasn't unusual. Baptist churches (and probably those of other denominations as well) began honoring law enforcement, fire and ems workers several years ago on a selected Sunday in May. (In one community, these observances are collectively called "911 Sunday.")

In Parma Heights, however, not all the firefighters were comfortable with the idea of compulsory attendance at a church service. According to an Associated Press account, several firefighters told their supervisors they didn't want to go. The response was that failure to attend would result in charges of insubordination.

The Parma Heights firefighters went to the Civic Appreciation Day ceremony, and then sought legal advice. On Oct. 4, 2000, all six of those firefighters brought suit against Parma Heights, charging that the chief's order to attend the service amounted to an intrusion on their rights under the First Amendment's provision on the separation of church and state.

According to a Gallup poll taken this past summer, 95% of Americans surveyed said they believed in God, and 48% reported talking about their religious beliefs at work the day they were polled. At the same time, the Equal Employment Opportunity Commission reported that religious discrimination or harassment complaints totaled 1,811 in 1999, a 13% increase over a three-year period. Americans are likelier today to encounter conflict in the workplace on the issue of religion and the expression of religious belief.

This is a matter of particular concern to fire service managers. First, the rules that govern religion in the workplace are different for public employers. The First Amendment prohibits government from passing any law "... respecting the establishment of religion or prohibiting the free exercise thereof." Second, firefighters work in a paramilitary, safety-conscious environment that places a high value on uniform appearance. Third, fire departments deliver services 24/7, with no days off designated for religious observance.

Fourth, given the predominance of the 24-hour shift among career firefighters, chief fire officers are concerned that religion in the fire station could interfere with response readiness. And fifth, the American fire service relies on continuing public confidence.

What are the ground rules for religious expression in the fire station today? In Lemon v. Kurtzman, 403 U.S. 602 (1971), the U.S. Supreme Court described three tests for "state action" that would not violate the First Amendment:

* The law or rule must have a secular purpose; it can't be aimed at a religion or religious practice. (For example, a rule designed to provide for safe use of scba by prohibiting beards may incidentally affect a firefighter who might want to wear a beard for religious reasons, but the rule is based on safety, not religious practice.)

* The "principle effect" of the law or rule must not inhibit or advance a religious purpose.

* The law or rule must not result in an "excessive entanglement" with religion. (One city's requirement that organizations holding rallies in a downtown public space pay costs of police and fire services for such rallies was held unconstitutional on First Amendment grounds when a religious group alleged that the standby fees served to inhibit religion.)

In Thomas v. Review Board of Indiana Employment Security, 450 U.S. 707 (1981), the Supreme Court refined the Lemon tests in favor of religion. In Thomas, the court reviewed the case of a Jehovah's Witness who quit his job rather than work on armaments. Thomas applied for unemployment benefits, but they were denied; the review board ruled that Thomas' resignation was voluntary. The Supreme Court disagreed, and held that Indiana's unemployment rules would meet First Amendment standards only if the rules were "... the least restrictive means of achieving some compelling state interest." (emphasis added)

But in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990), the court dealt with the question of whether Oregon could deny unemployment benefits to two Native Americans who had been fired for using peyote, a controlled substance - and a thoroughly documented element of the religious practices of a number of Native American tribes. The court seemingly backed away from the Thomas standard, holding that "... a neutral law of general applicability that incidentally impinges on religious practice will not be subject to attack under the free exercise clause." (emphasis added)

When Lemon, Thomas and Smith are all boiled down, some ground rules emerge:

* A law or rule that doesn't affect a central or core religious behavior or practice is probably constitutional. (This isn't a sure thing. Some jurisdictions prohibit laws or rules that unduly interfere with an "optional" religious behavior or practice.)

* A law or rule that implies or offers alternatives for the believer will usually survive judicial scrutiny. (For example, a fire department that employs a believer whose religion prohibits Saturday work and allows that firefighter to trade Saturday shifts is on solid ground.)

* What a fire chief may view as a "compelling" fire department interest may not always be what a court finds "compelling." (A fire department rule that prohibits any conduct of religious practice or behavior in a fire station to avoid religious arguments among firefighters is probably unconstitutional.)

Conversation without argument? Let's take that last example, religious practice in the fire station, and walk it through. The fire chief knows that there are two sure starters of firehouse conflict: arguments about politics or religion. She knows she can't ban arguments (that would destroy the American fire service as we know it), but she thinks that prohibiting any religious practice or behavior in her fire stations will prevent religious arguments. Besides, she thinks, wouldn't religious practice or behavior in a public workplace (a firehouse) violate that part of the First Amendment that prohibits the establishment of religion?

To coin a phrase, the First Amendment's intent is freedom of religion, not freedom from religion. There's an inherent conflict between the First Amendment's prohibition on establishment of a religion and its ban on laws and rules that prohibit the free exercise of religion. This conflict makes our fire chief's job difficult, though not impossible.

Our chief's interest in avoiding arguments over religion will most likely not meet the "compelling interest" test; a judge would probably rule that the chief's rule goes too far. Would the chief's interest be met if religious practice or behavior were conducted in private in the fire station? Are there alternatives to a rule that results in an absolute ban on the six-times-a-day worship required of an observant Muslim?

Now let's try a firehouse conflict that may look even more difficult. A firefighter assigned to Engine 1 has become an evangelical Christian, objects strenuously to the "filth" that the rest of the firefighters watch on tv, and demands that they quit watching "Jerry Springer" and start watching the "Prayer Channel." This firefighter is someone you, as fire chief, don't want to lose, but can you tell him that he needs to take the firehouse as he finds it, or leave it?

The answer to that question is tricky. If the firefighter's complaints and advice become disruptive, intimidating or harassing, you're on relatively solid ground with a carefully written rule prohibiting proselytizing or other religious activities that result in intimidation or harassment, at least in the states that make up the Eighth Circuit of the U.S. Court of Appeals (North Dakota, South Dakota, Minnesota, Nebraska, Iowa, Missouri and Arkansas). In Brown v. Polk County, Iowa, 61 F.3d 650 (1995), that court overruled a Polk County policy that prohibited "... any activities that could be considered to be religious proselytizing, witnessing or counseling."

In the course of overruling Polk County, the court stated that a more narrowly drawn rule prohibiting religious proselytizing, witnessing or counseling that was intimidating or harassing would have been constitutional. A more certain way for you to find solid ground is to ask yourself whether there is any other way to resolve the conflict that won't itself disrupt the workplace. Can your firefighter agree to simply go elsewhere in the station during "Jerry Springer" or any other program that offends his religious sensibilities? If he refuses, your intimidating/harassing rule stands on even firmer ground.

(A note on intimidation and harassment. In First Amendment cases, courts expect evidence of actual intimidation and harassment. Free speech and freedom of religion are considered core constitutional rights, so when you deal with your firefighter pursuant to your carefully written rule, the probability or expectation of harassment won't be enough. You'll need evidence of actual harassment or intimidation.)

Generally, courts are very careful in dealing with cases of employee-to-employee proselytizing. The rule of thumb that has evolved is that religious proselytizing is like asking a co-worker for a date. If a firefighter asks another firefighter if she's been "saved," and she replies that her beliefs are none of his business, and she expects no further conversations about religious belief, further proselytizing by the first firefighter can be considered religious harassment.

What about religious behavior or practice out among our customers? Courts tend toward emphasis on the establishment-of-religion side of the First Amendment. Proselytizing or religious displays in public (especially in the presence of the "captive audience" of an emergency, an inspection, etc.) find little judicial support, especially when the employees in question are public-safety employees. There's no on-point case law involving firefighters, but cases involving religious practices by law enforcement representatives resulted in the following findings:

Conduct: Juvenile-outreach counselor did counseling using explicitly Christian philosophy.

Finding: "Would impermissibly entangle the Juvenile in religion."

Conduct: Bailiff read Bible in public and shared his religious beliefs with prisoners.

Finding: Bailiff could have read Bible in private, and sharing of religious beliefs with prisoners amounted to an establishment of religion.

The bottom line of court rulings that uphold public employer limitations on public religious display, behavior or proselytizing is that such activities amount to unconstitutional establishment of religion if they create an appearance that the public employer is not neutral with regard to religion. Neutrality in this context has been held to be one of the "compelling government interests" that support a rule or law limiting religious practice or behavior.

Could a fire chief prohibit the wearing of religious pins or insignia on a uniform? Yes, under the "public-neutrality" approach described above.

RFRA: One more complication The court activity concerning religious activity during the evolution of the Lemon, Thomas and Smith cases didn't go unnoticed by Congress. In 1993, Congress passed, and President Clinton signed into law, the Religious Freedom Restoration Act. The rfra sought to impose a strict version of the compelling-government-interest/least-restrictive-means standard for all laws and rules (the old Thomas standard), whether of general applicability (work schedules, for example, thus effectively overruling Smith) or applicability to religion (workplace or public proselytization, for example).

But the U.S. Supreme Court declared the rfra unconstitutional in City of Bourne v. Flores, 117 S.Ct. 2157 (1997), ruling in part that Congress and the president had tried to redefine the scope of the First Amendment, thus exceeding the scope of Congress' power to impose rfra on the states. President Clinton proceeded with adoption of "Guidelines on Religious Exercise and Religious Expression in the Federal Workplace" that mirror rfra, which means that federally employed fire service managers and firefighters operate under a stricter standard, even when a rule or law is arguably neutral, not directed at any religion or religious practice.

Notwithstanding the stricter rfra standards, "Guidelines on Religious Exercise and Religious Expression in the Public Workplace" is a handy reference for any fire service manager looking for a variety of methods and examples of dealing with religion in a workplace setting. (The guidelines are available at .) Also useful are eeoc's "Guidelines on Discrimination Because of Religion," found at 29 cfr 1605 and available in most county law libraries.

It's tempting to ask what the fire chief in Parma Heights, Ohio, could have done to avoid the suit filed by the firefighters who didn't want to attend the church's Civic Appreciation Day observance. Alternative work assignments? Clear instructions on level of participation in the church service? The option of waiting outside, with the rig, until notified by church staff of the "official" part of the ceremony? Turn down the church's invitation? It's entirely possible that the firefighters' complaints were grounded on other issues and that the suit was unavoidable.

The Parma Heights fire chief's experience should remind all fire service managers that religious discrimination - and harassment - are issues as sensitive (and lead to as much litigation) as racial or sexual discrimination and harassment.