9th Circuit rules against Rev. Lumpkin

[Eugene Volokh]

    Lumpkin v. Brown, 1997 WL 152778 (9th Cir. Apr. 3) (Norris, J.),
upholds the removal of Rev. Eugene Lumpkin from the San Francisco
Human Rights Commission for making anti-homosexual comments.

    The court concluded that the action was permissible under RFRA
because it "served a compelling governmental interest--the
preservation of the integrity of [the city's] antidiscrimination
policies.  It was also the only effective way to remedy the damage his
statements as a Commissioner wreaked on the credibility of those
policies."

    In my view, this is entirely unsound reasoning that further
erodes the strict scrutiny test.  The result may well be right;
perhaps Pickering is the right test for government employee religious
freedom cases, despite RFRA's seeming insistence on a strict scrutiny
standard across the board.  (I'd try to reconcile Pickering with
RFRA's language by arguing that the government may sometimes demand
that employees waive their RFRA rights, just as they must waive their
free speech rights, and that Pickering is the right test for
determining if such a condition is unconstitutional.)

    But to say that the action passes strict scrutiny strikes me as
inconsistent with everything we know about strict scrutiny, even in
its watered-down U.S. v. Lee or Bob Jones Univ. v. U.S. form.

                               -- Eugene Volokh, UCLA Law