The leader of the Family Research Council (FRC), a socially conservative organization that the Southern Poverty Law Center labeled an anti-gay hate group in 2010, plans to join conservative pastors and “religious liberty advocates” at an Atlanta rally on Tuesday supporting a former senior city official who was fired after he expressed hostility towards gay people. Last week, Atlanta’s former fire chief, Kelvin Cochran, was dismissed due to a self-published book Cochran authored entitled Who Told You That You Were Naked? In that book, Cochran attacks “uncleanness — whatever is opposite of purity; including sodomy, homosexuality, lesbianism, pederasty, bestiality, all other forms of sexual perversion,” and he describes sex between two men as a “vile, vulgar and inappropriate” act that “defile[s] their body-temple and dishonor[s] God.”
In announcing his decision to fire Cochran, Atlanta Mayor Kasim Reed (D) cited the city’s nondiscrimination policy, adding that anyone who “creates an environment where that is a concern” will not remain a city employee.
FRC is presenting this as a case of religious discrimination — “If a government will fire someone for their religious beliefs, no beliefs are safe from government regardless of how sacred those beliefs may be,” accorrding to FRC’s press release — but that’s a red herring. Cochran was not fired because the city objects to his identity as a Christian. Indeed, Mayor Reed is also a Christian. Rather, Cochran was fired because of concerns that his now very public anti-gay views would create a work environment that was not welcoming to his gay subordinates. Mayor Reed also claims that Cochran published his anti-gay book without following protocols for seeking approval from city officials.
To be sure, Cochran’s actions were undoubtedly motivated by his religious views, but his motivation has no constitutional relevance. As Justice Antonin Scalia explained in his majority opinion in Employment Division v. Smith, “the right of free exercise [of religion] does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Thus, so long as Atlanta’s anti-discrimination policies apply equally to discrimination that is motivated by faith and discrimination that is motivated by some other reason, Cochran’s free exercise rights are not implicated here.
His lawyers at the Alliance Defending Freedom (ADF), a Christian right litigation shop, appear to be aware of this fact. The New York Times quotes an ADF attorney saying that they are “currently assessing legal options” to “vindicate [Cochran’s] right to free speech.” Free speech claims are legally distinct from free exercise claims.
The First Amendment, it should be noted, does protect hate speech. Mr. Cochran has a right to express views that are bigoted, ignorant or even downright evil without fear of sanction from the government. That does not mean, however, that he has a right to serve as a senior government executive and draw a government paycheck while he is proclaiming hateful views.
The law governing free speech for government employees is somewhat less clear than Scalia’s opinion in Smith, but it still favors the city’s ability to fire a senior official with a well-documented animus against a class of people. In Lane v. Franks, the Court’s most recent opinion examining the free speech rights of public employees, the justices did explain that public workers have robust free speech rights when they speak as private citizens — as opposed to when they speak within the confines of their own job. Nevertheless, these rights are not unlimited. The question in Cochran’s case is whether “the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.”
Atlanta’s fire chief is a very senior government official. He oversees one of the city’s essential services, and supervises about 750 employees in the process — some of whom, almost certainly, are gay. Gay residents of the city could reasonably read his anti-gay statements as an expression that they are unwelcome in Atlanta. Gay firefighters could conclude that they are equally unwelcome in their jobs. Skilled job applicants, who could make excellent firefighters, may decide not to apply for jobs in Atlanta because of the fire chief’s anti-gay views.
Nor is it particularly unusual for a senior government official to lose their job because they display impermissible animus. In 2014, for example, the city of Fruitland Park, Florida’s fire chief, who also served as deputy police chief, abruptly resigned after he was linked to the Ku Klux Klan. That was, admittedly, an even stronger case for terminating a government employee, had he not resigned, given the Klan’s long history of violence. But the same basic legal rule would apply to that former fire chief. Americans have a right to say virtually whatever they want. That doesn’t mean that they have a right to be paid by the government.
Though Cochran most likely has a weak legal case under existing law, it is possible that Georgia could change its law soon. In the immediate wake of Smith, Congress enacted the Religious Freedom Restoration Act (RFRA), which was intended to restore a legal rule that was more permissive of free exercise claims which existed prior to Smith. Although RFRA only applies as the federal level, several copycat laws were enacted by the states. A RFRA-like bill is pending in the Georgia legislature.
At the time of its enactment, RFRA was a popular statute intended to leave in place longstanding precedents establishing that religious liberty claims generally cannot be used to reduce the rights of other people who aren’t before the court — so an employer, for example, could not cite their faith to exempt themselves from anti-discrimination laws. In its closely watched Hobby Lobby, decision, however, the Supreme Court held that RFRA could indeed be used to diminish the rights of third parties. Significantly, while Hobby Lobby did clarify that “[t]he Government has a compelling interest in providing an equal opportunity to participate in the work force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal,” it did not offer a similar endorsement to laws prohibiting discrimination based on gender, sexual orientation or any other status.
The implication is that religious objections don’t trump bans on race discrimination, but they might trump bans on anti-gay discrimination — at least in jurisdictions that adopt the Hobby Lobby rule.