Jobs and Speech

Patrick refers to a report and analysis by Joseph Bottum on the First Things blog (http://www.firstthings.com/, June 21, 2006) that Robert L. Ehrlich, the Republican governor of Maryland, removed from office one of his appointees to the board of directors of the Washington Metropolitan Area Transit Authority (WMATA), an interstate agency that oversees public transportation in the Washington, D.C., area. The appointee, Robert J. Smith, had been a regular guest on a local cable news show in Maryland, and on the June 9 program referred to gays and lesbians as “persons of sexual deviancy.” He later reiterated to reporters that he “consider[s] homosexual behavior as deviant” and explained that this view stems from his Roman Catholic faith. The Governor said, “Robert Smith’s comments were highly inappropriate, insensitive and unacceptable. They are in direct conflict to my administration’s commitment to inclusiveness, tolerance and opportunity.” The WMATA chairwoman said that Smith’s remarks reflected “a high level of intolerance” and that she “was surprised that someone who sits as a public official on a board would make that kind of a statement.” One of Smith’s fellow board members, however, said, “To defend this point of view is beyond the pale.”

There are some interesting legal issues lurking.  I start with the proposition that a Governor can and should be able to remove a policy making appointee who publicly disagrees with the Governor’s policies. That would also be true if Mr. Smith was in favor of gay marriage, and the Governor disagreed.  If, on the other hand, Mr. Smith was a bus driver and in an off the job context publicly expressed views contrary to those of the Governor, the First Amendment would protect the employee from sanctions of any kind. On the other hand, this term, in Garcetti v. Ceballos, the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

    Without attending to the legal issues (just not his focus), Botum worries that a university professor might be fired for expressing views that regard homosexual behavior as deviant. Assuming the professor does not discriminate against gays and lesbians (where the case against the professor would be easy), suppose a professor at a public university is fired for expressing such a view “on the job” as a part of the job. Or suppose a professor is fired for expressing a view in favor of gay marriage either in an academic article or in the classroom.   If Garcetti applies without nuance (and assuming no contract providing explicitly or implicitly for academic freedom), university professors are at the mercy of their employers. Garcetti, at least, notes that there is an issue: “Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."

    Leaving the legal questions aside, the author in First Things maintains that, “The removal of Robert Smith is thus an early-warning sign. Unless things change in ways now quite unforeseeable, it will not be very long before the principle of traditional Western morality that homosexual conduct is immoral will be contrary to the public policy of the United States.” He proceeds: “Adherence to the new policy will be a de facto requirement for holding public office, and, as private entities adopt the policy as they have other anti-discrimination norms, people adhering to the traditional moral view will become unfit to serve as directors of public corporations, as officers of professional associations, as union officials, and as university professors.” This is a remarkable political claim. My guess would be that the country and the church (i.e., the People of God) will be polarized on this issue for some time to come and that people will frequently be elected to public office because they are on one or another side of this issue.