As a police officer, Eric Moutsos had no problem with working security at a gay-rights parade, but he did have a problem with kicking off the festivities by performing a choreographed routine as part of the department’s motorcycle squad.
As a result, Mr. Moutsos is no longer employed by the Salt Lake City Police Department. He resigned last year after the department ordered him to turn in his badge and his firearm in June, then placed him on administrative leave, for raising objections to the assignment.
In an interview with The Washington Times, Mr. Moutsos said he hasn’t changed his mind about the department’s role in the parade.
“It looks like we’re doing a type of a celebration in front of the parade,” Mr. Moutsos said. “I didn’t feel OK with being in front of that parade. And I don’t mean to rain on anyone’s parade, I simply didn’t want to be in one.”
After seven years on the force, he said he had often come to the aid of members of the local gay community. But as a member of the Church of Jesus Christ of Latter-day Saints, he was uncomfortable with the message he would have sent by performing in front of the Utah Pride Parade.
Moutsos made clear that he had no problem working the parade and even attempted to swtich positions with another officer doing traffic safety at the parade. Moutsos' objection was to being forced to actively participate in a parade to which he had strong religious objections.For his boss, however, harboring politically unacceptable views about homosexuality was inconsistent with being a police officer. Salt Lake Police Chief Chris Burbank told a TV reporter earlier this year:
“I will not tolerate bias, bigotry or hatred in the organization,” he said. “In order to be a police officer, you are to do the duties as assigned. And those duties cover a broad range of activities.”
“With police officers — and this is the problem across the nation right now — you have to be able to do your job and set your personal feelings aside in order to equally distribute law enforcement and good will from the police department no matter where you are in this country, to every individual regardless of their religion, their race, their creeds, what gender they are or what sexual orientation they might be,”As a result of the 1990 Supreme Court decision Employment Division v. Smith that gutted protections provided by the First Amendment Free Exercise Clause, Moutsos has little protection from discipline. Under Employment Division, Salt Lake City's attorneys could simply say the rule applies equally to all officers and that participation in the parade serves community good will. Utah does not have a RFRA which restores the pre-Employment Division standard for handling Free Exercise challenges. If Utah had a RFRA, once Moutsos showed the rule substantially burdened his religious beliefs, the city would have to show that the rule requiring officers to participate in the Salt Lake City Gay Pride Parade served a compelling interest in community outreach and the rule on participation (allowing no one to choose a different assignment) is narrowly drawn to advance that compelling interest. It is unlikely that Salt Lake City could meet the requirements of a RFRA test.
Moutsos might still have a free speech claim given Chief Burbank's foolish comment to the TV reporter that focused on the content of the officer's beliefs as being unacceptable in the department.
During the 2015 legislative session, Utah did pass a bill that expanded the state's anti-discrimination law to include sexual orientation while at the same time providing some mild protections for religious freedom. Legal experts suggest the new law would not have covered Moutsos' situation.