Fire Chief Kelvin Cochran — the subject of recent controversy over remarks made in a self-published religious book — has been terminated from the Atlanta Fire Rescue Department, Mayor Kasim Reed announced today.Of course you can have private religious views. In private. They're certainly not to be published in a book, even a religious book for religious audiences -- not if you want to hold a job.
Cochran returned to work today following a month-long suspension for comments in his 2013 book “Who Told You That You Are Naked?” Many criticized the book as promoting discriminatory and anti-gay views, while Cochran’s suspension — and now termination — has since become the focus of a fight over “religious liberty.”...
Among what city leaders said were troubling remarks in the fire chief’s book was a description of homosexuality as a “perversion” akin to bestiality and pederasty. Reed said in November that such writings were inconsistent with the city’s employment policies and opened an investigation into potential discrimination within the fire department. The findings of that investigation have not yet been released.
The mayor says the real reason he's firing the Fire Chief is that he questions his judgment, and had told him not to speak to the matter in public while a national controversy raged about his good name. The Chief says that isn't what happened, and that part is one of those 'he/she said' controversies.
But the mayor gives the game away when he says that "he believes Cochran opened up the city to the potential for litigation over future discrimination claims," and that "such writings were inconsistent with the city's employment policies[.]" What that means is that he believes that it is against the law for a government official in Atlanta to publish a book making these kinds of claims, both in the sense that it would constitute a tort and that it is a violation of the laws governing employment policy.
If true, that would mean that the religious views of the Chief's church are illegal for a public official in Atlanta to profess. That sounds suspiciously like a religious test for public office -- a kind of negative test, so to speak.
27 comments:
A government job anyway.
What that means is that he believes that it is against the law for a government official in Atlanta to publish a book making these kinds of claims, both in the sense that it would constitute a tort and that it is a violation of the laws governing employment policy.
I would actually disagree. It means what it says. If you have a head of a department (and it doesn't matter if it's public or private) make a publicly available statement that they dislike group A (and it doesn't matter if group A is Hispanic, gay, left-handed, fat, or short) that's completely legal, and in a vacuum a protected thing for them to say (as per the First Amendment). However... if someone in that department is fired, or passed over for promotion, or receives a negative performance review, or claims that they work in a hostile work environment and just so happens to be a member of group A... then they can totally use that legal and protected speech statement against the company/government to sue claiming discrimination. And they'd likely win. After all, how can you state (as the defendant in a lawsuit) that no discrimination could have occurred when the head of the department (or organization) has publicly stated that they don't like group A?
I am totally in favor of protecting people's rights to say unpopular things, for whatever reason. But I'm also in favor of an employer not having to take on the financial burdens for the individual's statements. If I were to make an inflammatory statement that my employer did not want to have associated with their business, then my employer would be fully within their rights to ask me to retract it, or not make further such statements on pain of termination. Because hiring someone is not a suicide pact. The employer should not be forced to suffer through boycotts or lawsuits based upon my right to legally say what I wish.
That makes a kind of sense for private employers, Mike. But it is a problem for the religious test doctrine with public offices.
Unless you want to make the claim that government employers cannot be sued for the discrimination of their employees, then I don't see a way around it. Your employment (regardless of if you're a public or private employee) is predicated on behavior that does not bring disrepute upon your employer. And if it is not, if you may say and do anything you wish, and your employer (public or private) then your employer needs to be indemnified from your actions if your employer is sued and your words are used in court to prove you discriminated against someone. And that's simply not a workable solution.
Let me put it this way. Let's say I'm the head of the tech department at a the University of Georgia (I'm not, but let's use it as an example). And I publish a book explaining why Christians are evil, and responsible for all the woes of the world. But it so happens that I have an employee under my supervision who is an openly practicing Christian. And it so happens that six months after I publish my book, I have to terminate one of my employees because of budget cuts. And I choose to terminate the one outspoken Christian.
Now, under normal circumstances, my publishing of that book is utterly meaningless to my employer. In a vacuum, I've got every right to hold that belief and to publish it. But because I've terminated an active member of the very group I've publicly said are evil, if that individual wants to sue for discrimination, don't you think they're likely to win such a case in court? And don't you think my employer would be justified in telling me not to publish that book or face termination? After all, by publishing that book, I'm putting THEM at risk for legal action. Without that book published, me holding anti-Christian beliefs would be hard to prove, and it would be much harder for the terminated worker to prove discrimination in court.
So, is the reason you published the book religious? Opinions in general are protected as you say; but there is something specific about professions of faith in public offices. If you published the book because you were a Muslim, "...and of course like all Muslims I believe Christians are going to hell," publishing the book shouldn't be grounds for firing. Otherwise, the only way to hold the office as a Muslim is not to profess to believe the ordinary tenets of your faith. It is a religious test: you are effectively saying that the only way to be religious in public office is to not profess any part of your faith someone might find offensive.
My motivations for exercising free speech are actually irrelevant. But let's say, for the sake of argument, that they are. My right to say them, and my right to publish them are protected, but my employer is still not indemnified if someone sues for discrimination. And I am undoubtedly exposing my employer to such suits by the very publication of my personal opinions. Should my employer be required to keep me employed, even if it is costing them money in discrimination suits? My rights to practice my religion (or to publish my opinions of a non-religious nature for that nature) are not infringed by my employer not keeping me employed, even if my employer is the state. My employment rights may be so violated, and I'd even possibly be able to sue for religious discrimination, but at that point, the question becomes "is it cheaper to pay the one potential lawsuit [I was fired because I was opening the employer up to discrimination lawsuits] or to pay out multiple other lawsuits [if anyone worked for me was in group A, and decided to sue for discrimination, they've all but got an ironclad case]?" I submit that it would likely be cheaper to fight the one suit than to lose several.
The problem is not the freedom of speech issue; it's not the first amendment. It's Article VI, paragraph 3: "...no religious test shall ever be required as a qualification to any office or public trust under the United States."
I can't make you profess a given religion as a condition of holding a public trust; and I can't make you not make religious professions as a condition either. I can't say that no Muslims may apply, and therefore I can't say that "no one who professes that Christians are damned to hell may not apply lest Christians sue the government for discrimination."
Now, as far as I know the application of this part of the Constitution to the states and their creatures (cities, counties) is not a decided issue. However, Georgia's state bill of rights says it even more plainly:
"No inhabitant of this state shall be molested in person or property or be prohibited from holding any public office or trust on account of religious opinions; but the right of freedom of religion shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state."
That seems pretty clear to me.
There's a difference between prior restraint (the religious test clause) and actions taken after hiring.
The Constitution is pretty clear here:
"...no religious test shall ever be required as a qualification to any office or public trust under the United States."
We don't have an unlimited right to express ourselves, whether the topic is religion or any other topic. The Constitution prohibits prior restraint. It doesn't say anything about restrictions after employment. Public officials are required (or strongly encouraged) to do all sorts of things that limit their private liberty as a result of accepting public office. Recusing themselves, selling off investments, resigning from boards. The list goes on and on.
I can't really reasonably construe this situation as violating the Constitution. It's not really freedom of religion at issue here, but rather the freedom of a public official to express his or her opinions/beliefs in a completely unrestrained manner.
That's not protected by the Constitution unless we begin to read all sorts of stuff into it that isn't really there.
I don't think there's any need to read anything at all into the section of the Georgia bill of rights I quoted. This is a case in which he's being prevented from holding a public office for professing a religious opinion. There's no threat to the peace or safety of the state -- he's not endorsing jihad against anyone -- so the exception doesn't apply.
There is also nothing at all about "prior restraint" in the Constitution. That pertains to particular case law regarding the first amendment. But this isn't a first amendment case; if it's a US constitutional case, it's an Article VI case. If it's a Georgia case, it's a bill of rights case. Prior restraint isn't part of those traditions.
So if we're left with "he cannot be let go, because that qualifies as discrimination", what do you propose to do about discrimination lawsuits brought against his department? A jury surely is going to hold his published opinions against him in such a suit, and it will end up costing his employer money not only to defend against said suits, but probably to pay out when they lose as well. Are you saying they absolutely have no recourse but to pay out for suit after suit, and not be able to hold him accountable in any way?
Well, I would say that courts should not allow claims against them for doing their duty. But if they do, it is better for the taxpayer to eat the occasional settlement than to surrender a part of the bill of rights or Constitution to the discrimination racket.
And if he is, in fact, discriminating against others in his official duties due to privately held beliefs, then they are still obligated to allow him to keep his position?
Frankly, Grim, I find it humorous that I, as a libertarian, am the one arguing that individual rights do have limitations. But in this particular case, I think I might more successfully argue this point from the following perspective:
An individual has the inalienable right to believe whatever they like. But acting on those beliefs may in fact open them up to consequences. If you have a religious belief that Jews are to be killed, you do have a right to that religious belief. But if you act upon it, you run afoul of the law. You may hold the religious belief that homosexuality is sinful. But if you discriminate against someone due to their sexual orientation, then you run afoul of the law. Unless you are arguing that a government employee may not be held accountable for transgressions of law as long as they are doing so in a manner consistent with their religious beliefs, then the employer should be allowed to terminate a supervisor who legitimately discriminates against an employee based upon the supervisor's religious beliefs. And if that is the case, do you feel that the employer is under an obligation to wait until after the law is broken before terminating such an employee?
I'd actually consider that a legitimate requirement from the standpoint that otherwise you're preemptively punishing someone for a crime they have not yet committed, much less been found guilty of. And if that's the source of your argument, then I don't actually see how religious belief (or lack thereof) actually factors in. After all, your speech, whether religiously or secularly based is protected.
Further, straight from Georgia's Bill of Rights (as you quoted):
"No inhabitant of this state shall be molested in person or property or be prohibited from holding any public office or trust on account of religious opinions; but the right of freedom of religion shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state."
As per Merriam-Webster licentious is defined as "lacking legal or moral restraints". I submit that discrimination in the course of official duties is lacking legal restraint. So one's religious beliefs are not construed (by the Georgia Bill of Rights) as a shield from legal repercussions for law breaking.
And if he is, in fact, discriminating against others in his official duties due to privately held beliefs, then they are still obligated to allow him to keep his position?
I shouldn't think so, but that is a question not at all proven here. The argument is that the possibility of such suits, that is the mere allegation of discrimination, is enough to justify his firing. It is merely having expressed a religious opinion that is at issue. Nobody is suggesting he actually discriminated against anyone, or that he even would for sure be unable to separate his religious opinions from his duty to nondiscrimination in employment practices. They are saying that no one who professes the beliefs he has professed could be employed in this public position because it might possibly cause someone to believe he might possibly discriminate.
That's a much stronger sort of claim. If you show me that he has systematically excluded gay firefighters from his department, or unfairly not promoted them, then that's a failure to do his duty as the Fire Chief. If you merely show me that he wrote a book on his own time, published it privately, and it expresses some religious opinions that might make other people feel like he doesn't like them, that's a totally different issue. If we aren't talking about actual acts of discrimination, but merely about his profession of religious opinion, he ought to be protected.
Now, in fairness, I should admit that I regard discrimination lawsuits with a very jaundiced eye. My sense is that they are almost always either filed by a very bad employee who was fired (or not promoted) for cause, but who is trying to punish their employer by claiming it was about whatever protected characteristic they happen to possess; and the rest of the time, it is usually somebody pushing a political agenda through the courts that they couldn't get by the ballot box or the legislature.
But here, I don't even have to try to demonstrate bad faith on the part of the filer of the lawsuit. There is no filer of any lawsuit! There is not even an allegation that the Chief actually discriminated against anyone.
As I said, I am much more open to the opinion that if there is no allegation of discrimination, then punishment for "potential" should be considered anathema. Unless you want to argue that it's a form of "reckless endangerment" to put the employer at risk. But generally, the Courts have held that speech is to be infringed only in the most egregious of circumstances. But in that case, religious opinion or secular, they should be identically protected.
Alright, so it appears we have a form of accord. Private entities should be allowed to terminate employees based upon risk of negative consequences for the employer, public entities have a higher burden to meet (by virtue of the fact that private entities cannot be held to "infringe rights to free speech"), but that in cases of actual discrimination, then the employer is not obligated to retain the discriminating employee. And finally, that public entities may not punish employees for violations that are merely potentialities as that violates their rights of due process. Does that seem right to you?
Close! The basis isn't infringement of free speech, but the specific duty of government not to apply a religious test to public office. The free speech issues also exist, but they aren't the ground of my arguments.
The free speech issues also exist, but they aren't the ground of my arguments.
Sorry, didn't mean to imply that they were the basis of yours. Just meant to imply that we were on the same page with regards to them.
But in any event, shouldn't the principles be the same? If we are forbearing to punish someone for something that has not yet happened (I'm going to go ahead and give in to calling it "pre-crime"), then the reason behind the speech shouldn't matter. If I just want to publish a book saying that "all religious people are evil" because I'm a rabid atheist, then that should be just as protected as "I believe all atheists are hellbound" because I'm a rabid theist. Or even "I believe all left-handed people are crooks and liars". I should be just as protected. The religious test still applies as well, of course.
Well, atheism seems to be a religious commitment too -- it's a commitment on the issues of religion, at least. The cases are too parallel to show us the distinction.
Take the case of someone who published racist writings grounded in pseudoscience rather than religion. Now, I think, you could fire that guy even if he had never discriminated against anyone. There's no guarantee in the Georgia bill of rights that you shall not be barred from public office for any opinion whatsoever, but there is a guarantee governing specifically religious opinions.
Take the case of someone who published racist writings grounded in pseudoscience rather than religion. Now, I think, you could fire that guy even if he had never discriminated against anyone. There's no guarantee in the Georgia bill of rights that you shall not be barred from public office for any opinion whatsoever, but there is a guarantee governing specifically religious opinions.
Well... I actually can't agree with that. And here's why. This pseudo-scientific racist... is what he is publishing illegal? Is what he is publishing (outside his official position) a reflection of his job? I'll agree if he writes something to the effect of "as Chief of the Cobb County Fire Department [blah blah blah]..." then perhaps so. But if it's in his role as a private citizen, are you not discriminating against him based upon his privately held beliefs (non-religious though they may be)? And aren't you punishing him for a non-crime in anticipation of an actual crime? How is that consistent with due process of law?
I know you are aware of the military's position on political speech. It is fine for you to engage in such while off duty and out of uniform, and (perhaps most importantly) not representing your opinions as anything other than your own (i.e. not those of a US Marine/soldier/sailor/airman). That is an eminently reasonable restriction. But for a government agency to say "I don't like what you wrote and published on your private time, so we're terminating you" is a clear violation of viewpoint discrimination. By all means, terminate said employee if there are substantiated claims of discrimination they have performed. But to punish them for doing absolutely nothing illegal or unethical? No. That's a bridge too far.
And the funny bit is, on that one, we've reversed our original positions. :)
And actually, thinking more carefully upon it, that's a much better example. If the Fire Chief writes a book laying out his opinion that Democrats (or Republicans, as you prefer) are awful people and likely mentally disturbed, then can he be fired for that? It's not religious speech, merely political. Again, I think we clearly agree that such a termination can be fully merited if there are proven cases of active discrimination by said Fire Chief. But if there's not been so much as an accusation of discrimination on his part, how can you justify firing him for political speech?
I don't think I've reversed positions; I think I'm consistently holding that the protections due to religious freedom under our system are not reducible to the protections due to free speech. I've said throughout that this isn't a First Amendment issue, it's an issue for the question of whether religious tests can be applied to public office.
So the questions of free speech apart from religion are really different. Religious opinions are protected in a way that non-religious opinions are not -- not that there is no protection for non-religious protections, just that there are specific additional clauses protecting religious opinion.
That's why I said, in response to Cass, that 'prior restraint' has no real place in the discussion about the Fire Chief. We're not talking about the free speech issues, although they are there: he wasn't prevented from publishing his opinions, and if this were only a free speech issue, he might simply suffer the consequences of his speech.
The religious test issue is an additional layer of protection, over and above the First Amendment protections. What I'm saying is that in a case that was merely about free speech, you might fire someone for 'bad judgment' simply because he chose to endorse pseudoscientific nonsense, or publish racist tracts under his own name.
But to say that professing a religious opinion constitutes bad judgment is to institute a religious test -- the test of your judgment is nothing other than the test of which religious opinions you profess. That's unconstitutional (at least in Georgia) even if it would be acceptable for non-religious free speech.
The "reversing position" thing is more along the lines of me starting out by saying "yes you can fire someone for this" and you taking the position that you could not, and then "swapping". But I see your point that you had never claimed that it was wrong to fire someone from public office for non-religious speech. Though I still disagree.
It's not so much a case of prior restraint (though I suspect that may also apply) as it is a case of viewpoint discrimination. A mayor cannot fire a city official simply because the mayor does not like the official's political party. But that is almost precisely what is being attempted. Sure, the cover is "well, it opens us up to being sued". But how can you fire someone for something that might but has not yet happened (again, leaving private employers out of the equasion)? That smacks of a government official denying someone due process.
Well, the mayor has just opened the city of Atlanta up to a lawsuit himself, as far as that goes. Firing the Fire Chief for professing religious opinions would seem to be grounds for a civil rights lawsuit as well! A lawsuit the mayor is bound to lose, I would guess, given the plain language of the state constitution and the kind of jury pool apt to try the case.
And that's an interesting question... can the city remove the mayor for discrimination?
The voters can recall him, but I don't know if there is any administrative process. I'm also not sure you'd want one, since it would inevitably be used by career bureaucrats in public sector unions to eliminate mayors who disagreed with their preferred policies.
Serfs have little say in what their lords require as permission to farm on noble owned land.
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