The First Amendment and rejection of a potentialcountyDirector of Schools

[Mark Graber]

The argument is not when and whether a belief that homosexuality is
right or wrong is relevant to certain government positions.  The
question is on what basis may the inference be made.  Howard and I are
simply rejecting the claim that a school board may constitutionally make
inferences about a person's secular committments on the basis of their
religious affiliations.  The argument is completely different if the
plaintiff had written a letter to the editor asserting that secular
people should condemn homosexuality.  But that is not the argument being
made.

There may be a variation on Eugene's argument, namely that there are
certain appointments which are not subject to judicial analysis.  So,
for lots of good reasons, we may permit the president to rely on race,
religion, and gender when making certain appointments.  I have, however,
grave reasons for thinking that these apply in this situation (hard to
imagine the Board being sustained if they declared they were determined
to hire a black, Jewish woman). 

Mark A. Graber

>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 11/22/06 1:49 PM >>>
	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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