The First Amendment and rejection of a potential
countyDirector of Schools
MGRABER at gvpt.umd.edu
Wed Nov 22 10:28:22 PST 2006
So the logic here is that a liberal district may refuse to hire any
evangelical Christian on the ground that belonging to an evangelical
sect provides evidence that the person probably disapproves of
homosexual relations. Notice, at least as Eugene presented the case,
the only evidence of the plaintiff 's attitudes towards homosexuals is
that he participated in a religious service with many gay and lesbians.
Mark A. Graber
>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 11/22/06 1:12 PM >>>
The chief claim that the panel discusses is a Free Speech
claim; Scarbrough also raised a Free Exercise Clause claim, but the
panel treats it the same as a Free Speech Clause claim.
My sense is that there's no Lukumi-like discrimination based on
religion or religiosity here; there's good reason to think board
disapproved of Scarbrough's implicit endorsement of homosexuality as
proper behavior, but little to think that they disapproved of his
because of its religious context. So if there's a Free Exercise
violation, it would presumably be some sort of hybrid-rights
triggered partly by the Free Speech Clause.
By the way, sorry for not posting a link to the decision; it's
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