The First Amendment and rejection of a potentialcountyDirector of Schools

[Volokh, Eugene]

	The question isn't whether a liberal district may refuse to hire
any evangelical Christian on these grounds -- only whether it may refuse
to hire a *superintendent of schools* on the grounds that he may believe
homosexuality to be wrong (whether the belief is religious or
otherwise).

	I take it that a Governor would have the right to reject a
candidate for a Secretary of Education position on the grounds that the
Secretary's public speech has suggested endorsement of
anti-homosexuality views -- or for that matter, reject any candidates
for any cabinet positions who (for instance) aren't pro-choice or
anti-war or whatever else.  Likewise, a Mayor may dismiss a Human Rights
Commission employee on these grounds.  (See Lumpkin v. Brown, 109 F.3d
1498 (9th Cir. 1997), upholding such a dismissal, applying Pickering but
also citing Elrod and noting that policymaking employees may be removed
solely on the basis of political affiliation.)  Perhaps the reason is
simply that anti-homosexuality speech is more likely to fail the
Pickering balance than pro-homosexuality speech (though I'm not positive
that this is so, especially if loss of public support is an important
factor in the Pickering analysis).  But I wonder whether there's also an
Elrod/Branti element here, so that the elected official may dismiss
policymaking employees (or reject applicants for such poses) even
without any need for a Pickering showing.

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Graber
> Sent: Wednesday, November 22, 2006 10:28 AM
> To: conlawprof at lists.ucla.edu
> Subject: RE: The First Amendment and rejection of a 
> potentialcountyDirector of Schools
> 
> 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 Clause 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 members disapproved of Scarbrough's implicit 
> endorsement of homosexuality as proper behavior, but little 
> to think that they disapproved of his speech because of its 
> religious context.  So if there's a Free Exercise Clause 
> violation, it would presumably be some sort of hybrid-rights 
> violation, triggered partly by the Free Speech Clause.
> 
> 	By the way, sorry for not posting a link to the 
> decision; it's 
> http://www.ca6.uscourts.gov/opinions.pdf/06a0434p-06.pdf .
> 
> 	Eugene
> 
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