Rules Are for Schmucks: The Fired Chief – Act II

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Three years ago, I wrote about the saga of Atlanta Fire Chief Kelvin Cochran, who was fired by the mayor for writing and distributing a religious book at work that slammed LGBT people and non-Christians. The LGBT and non-Christian employees who worked for Cochran felt justifiably spooked when their boss called them “wicked,” “evildoers,” “deceitful,” “mischievous,” and “loathsome.” A federal district court has now issued an important but somewhat confusing preliminary ruling in the matter.

To read the evangelical press, you would think that the ruling came down decisively on the bigoted fire chief’s side. “Judge Rules for Kelvin Cochran,” the January 4 Christian Post headline read. That’s pretty clear, isn’t it (in a story that also assures us “he’s in a position to recover his lost wages and benefits”)? Even clearer was the American Family News Network’s summation: “Court: Atlanta was in the wrong when it fired Cochran.” That article quoted a Cochran attorney gushing that “Chief Cochran not only gets his lost wages, he gets his lost benefits, we get attorneys’ fees, and it’s very possible, yeah, it’s still in play—one way for them to remedy the situation is to give him his job back.”

Mere truth has never been a core value for the God lobby, though, and these stories are a perfect example. There is no ultimate decision in this case—there hasn’t even been a trial yet. What has happened is that the judge has made several rulings about what the law is, to guide how the trial should proceed. A trial is still scheduled, and only after it is held will we know whether Mr. Cochran will get any lost wages, etc.

Here is what Judge Leigh Martin May said the city should not have done in her decision on various pre-trial motions. It should not have attempted to enforce a sweeping prohibition on all forms of outside employment (including publication of books) by every single city employee, unless that employee previously obtained permission of a supervisor. The rule is so broad that it would prevent an employee from publishing a book about coaching youth sports or about knitting, for example, without permission. Any such rule, Judge May said, must be much more narrowly tailored to addressing potential harm than Atlanta’s rule was.

But here is what the city could do. It could decide that it’s a bad idea for a high-ranking member of the city administration, like the chief of a fire department with well over a thousand employees, to publish a book condemning a substantial proportion of those employees as evil sinners, in direct contradiction of non-discrimination policies the city tries to promote. It could decide that it’s a bad idea to subject the fire department to the risk of potential complaints from “sinful” property owners who feel they receive slower service than good Christians do. It could decide that when the mayor orders not to discuss a situation while an investigation is being conducted, he means it. And when that employee instead helps whip up a “spiritual warfare” campaign of racial and religious hatred against the mayor that results in seventeen-thousand angry emails, many containing racial slurs and death threats, he needs to look for a new job. “I hired him to put out fires,” the mayor said. “Not to create them.”

Moreover, the judge was completely unimpressed by the fact that the fire chief expressed his loathing for gay people in religious terms. In her view, the city has an interest in the smooth running of its fire department, and neither the free exercise clause of the First Amendment nor the “no religious test for office” clause of Article VI of the Constitution can prevent the city from taking religiously neutral steps to assure just that.

In other words, the city had multiple reasons for firing Chief Cochran. The court has ruled that one of them was unlawful, but that other reasons were completely OK. If the city can persuade the finder of fact at trial that it relied on one of the valid reasons to fire Chief Cochran, which seems pretty easy, that should be the end of a case that never should have happened in the first place.

There is one important takeaway from this fiasco that will not appear in any final opinion, though. The action being complained of here was that of a local authority, not of a federal agency, in a state that does not have a Religious Freedom Restoration Act (RFRA) on its books. (The legislature passed one in 2016, only to have it vetoed by a highly conservative but principled governor.) In her opinion, Judge Martin conducted a thoughtful balancing of the city’s interest in the efficient running of its fire department vs. the employee’s interest in unfettered religious speech. She concluded that the city has a greater interest in regulating the comments of a supervisor of over a thousand employees than it would in regulating the comments of, for example, a rank and file firefighter. Her balancing makes eminent sense. But if RFRA applied, then all such balancing gets tossed out the window and government is forced to bend over backwards to accommodate everything that smacks of religion. I strongly suspect that the result here would be different in a RFRA state.

There is one other danger as well. After Cochran loses at trial, he may (and probably will) appeal up the chain. If this reaches Justice Gorsuch et al. here in Washington, things may turn out differently. Gorsuch would like nothing better than to cram the RFRA concept that most states have rejected into the First Amendment, and this case may be his chance to do it.