The First Amendment and rejection of a potential
countyDirectorof Schools
Mark Graber
MGRABER at gvpt.umd.edu
Wed Nov 22 11:11:47 PST 2006
I confess to thinking that speech at a religious service is almost
always off-limits, unless there is a compelling interest. Of course,
religious organizations do a great many things, and one might argue that
the talk I give on Brandeis before the Temple Brotherhood is not really
a religious meeting and, without deciding the issue, I think the
argument is reasonable. So one may raise a good many questions about
the person who gives a speech endorsing a candidate at a meeting
sponsored by a religious organization. But what people say at prayer
meetings, I believe, cannot be relevant to their standing in the secular
community without violating the free exercise clause.
MAG
>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 11/22/06 1:53 PM >>>
Well, recall that Scarbrough neither belongs to such a
religion,
not was designed the position because he belonged to the religion (in
the sense that the government's actions were caused by his *religious
affiliation* or even by the religious nature of his speech).
Rather, the government rejected him because of his speech,
apparently not much caring whether it was to a religious group. Would
there be a Free Exercise Clause violation if, for instance, the
government disciplines an employee (on Hatch-Act-type grounds) for
giving a speech endorsing a political candidate, where the speech
happened to be at a religious meeting? I would think, given Smith,
that
this would either be a pure Free Speech Clause case or, if it were a
Free Exercise Clause case, it would be so only because of the hybrid
rights doctrine.
> -----Original Message-----
> From: Howard Schweber [mailto:schweber at polisci.wisc.edu]
> Sent: Wednesday, November 22, 2006 10:48 AM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: The First Amendment and rejection of a potential
> countyDirectorof Schools
>
>
>
> I am very confused, here. If my religion teaches that
> homosexuality is acceptable, and then I am denied a position
> because I belong to a religion that teaches that
> homosexuality is acceptable, how is that not an infringement
> on my Free Exercise rights? Just because some other,
> non-religious people hold the same view for non-religious reasons?
>
> hs
>
>
> At 10:12 AM 11/22/2006 -0800, Volokh, Eugene wrote:
> > 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
> >
> > > -----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 10:07 AM
> > > To: Volokh, Eugene; conlawprof at lists.ucla.edu
> > > Subject: Re: The First Amendment and rejection of a potential
> > > countyDirector of Schools
> > >
> > > Is this first amendment speech or first amendment religion.
> > >
> > > Would a school board be allowed to reject a candidate for
> anything
> > > on the ground that the candidate belonged to a religious society
> > > that accepted gay and lesbian members?
> > >
> > > Mark A. Graber
> > >
> > > >>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 11/22/06 1:01 PM >>>
> > > In Scarbrough v. Morgan County Bd. of Ed., decided today by
> > > the Sixth Circuit, Scarbrough had been the elected
> superintendent of
> > > a county school system. The elected position expired by law, and
> > > was replaced with an appointed position, Director of Schools;
> > > Scarbrough was one of the candidates for that position.
> The county
> > > Board of Education then rejected him, allegedly because he had
> > > agreed to say a prayer at a breakfast hosted by a church with a
> > > predominantly gay and lesbian membership (the
> Metropolitan Community
> > > Church).
> > >
> > > The Sixth Circuit held that the rejection violated
> the First
> > > Amendment, and I think that has to be right as to most government
> > > employees. But the Circuit didn't consider whether the
> position of
> > > Director of Schools is the sort of high-level
> policymaking position
> > > that elected officials may fill even based on the candidate's
> > > otherwise protected speech or political association. It
> seems to me
> > > pretty clear that a Governor, for instance, would be free
> to appoint
> > > a state Secretary of Education based on the appointee's party
> > > affiliation or his otherwise protected speeches to various groups
> > > that many voters disapprove of -- such decisions may be
> > > narrow-minded, or improper pandering to public prejudices, but I
> > > take it that under Elrod and Branti they would be
> constitutional (or
> > > do Elrod and Branti limit themselves only to decisions based on
> > > party affiliation and not based on speech?). Is Director
> of Schools
> > > a sufficiently high-level position to qualify as well?
> > >
> > > (Scarbrough never did give the speech, but I agree with the
> > > court that this shouldn't change the First Amendment analysis.)
> > >
> > > Eugene
> > > _______________________________________________
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