Lumpkin v. Brown

109 F.3d 1498, 97 Daily Journal DAR 4445, 97 Cal. Daily Op. Serv. 2510, 1997 U.S. App. LEXIS 6245, 70 Empl. Prac. Dec. (CCH) 44,585, 73 Fair Empl. Prac. Cas. (BNA) 895, 1997 WL 152778
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 3, 1997
DocketNo. 95-15006
StatusPublished
Cited by6 cases

This text of 109 F.3d 1498 (Lumpkin v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lumpkin v. Brown, 109 F.3d 1498, 97 Daily Journal DAR 4445, 97 Cal. Daily Op. Serv. 2510, 1997 U.S. App. LEXIS 6245, 70 Empl. Prac. Dec. (CCH) 44,585, 73 Fair Empl. Prac. Cas. (BNA) 895, 1997 WL 152778 (9th Cir. 1997).

Opinion

WILLIAM A. NORRIS, Circuit Judge.

In 1993, the City of San Francisco removed Reverend Eugene Lumpkin from his position as a member of the San Francisco Human Rights Commission because of public statements he made condemning homosexuality. The statements cited by the City in removing Reverend Lumpkin included the following:

* “[T]he homosexual lifestyle is an abomination against God. So I have to preach that homosexuality is a sin.” CR 29, exh. B.
* “I believe everything the Bible sayeth,” which includes belief in the proscription in Leviticus that a man who sleeps with a man should be put to death. CR 29, exh. E.1

In removing Reverend Lumpkin from office, then-Mayor Frank Jordan stated:

Reverend Lumpkin chose to make his beliefs a part of the political process, and in so doing crossed the line from belief to behavior to advocacy. Reverend Lumpkin, by failing to disassociate himself from specific biblical passages which may appear to justify stoning persons or groups of people, implied that he condoned physical harm.
... [Njo person will be allowed to serve in my administration whose actions may be interpreted by some to encourage violence or give support to others who seek to justify their hatred.

CR 29, exh. H.

Mayor Jordan’s action was backed by the San Francisco Board of Supervisors, which resolved that:

[1500]*1500Eugene Lumpkin has, by his words and demeanor undermined the role and responsibilities of the Human Rights Commission and his statements and actions have resulted in a lack of confidence in the Commission’s ability to perform its duties as expressed by a wide range of San Francisco residents and organizations....

CR 23, Exh. C at 2.

Reverend Lumpkin sued the Mayor and the City, claiming that his removal from the Human Rights Commission violated his rights under the First Amendment and the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-l. The district court granted defendants summary judgment on the ground that the City’s action was fully justified because Reverend Lumpkin’s public statements were inconsistent with his “broad responsibilities for formulating, implementing and explaining [the] policy” of the Human Rights Commission, Order at 9, 14, and because his dismissal did not constitute governmental establishment of religion. Order at 17.

We agree with the district court that neither the First Amendment nor the Religious Freedom Restoration Act requires San Francisco to tolerate members of its Human Rights Commission who make public statements that are antithetical to the Commission’s official charge “to eliminate prejudice and discrimination because of race, religion, color, ancestry, age, sex, sexual orientation, disability, or place of birth ... and to officially encourage private persons and groups to promote and provide equal opportunity for and good will toward all people.” San Francisco Admin. Code § 12A.2. Reverend Lumpkin’s statements explicitly condemning homosexuality as a sin and implicitly endorsing violence against homosexuals are not simply hostile to the Commission’s charge, they are at war with it. Neither the First Amendment nor the Religious Freedom Restoration Act requires government at any level to put up with policy-level officials who work at cross-purposes with the policies they are responsible for carrying out.

To be sure, when Reverend Lumpkin speaks as a private citizen, he has every right to preach that homosexuality is a sin and that Leviticus says that “a man who sleeps with a man should be put to death.” CR 29, exh. E, at 5. But the First Amendment does not assure him job security when he preaches homophobia while serving as a City official charged with the responsibility of “eliminating] prejudice and discrimination.” When he took his oath of office, he entered into a covenant with the people of San Francisco that he would work to further the policies he was empowered to carry out. He accepted a position of public trust which obligated him to foster tolerance, not intolerance. Predictably, the people of San Francisco reacted with a sense of outrage to his public statements. CR 26, at 3. As Reverend Lumpkin himself put it, “Mayor Jordan has been besieged with demands that he fire me from the City’s Human Rights Commission.” CR 23, exh. A., at 1.

The First Amendment strictly protects freedom of expression. Nonetheless, when the government acts as an employer, it has certain latitude to protect its operations and policies from being subverted by its own personnel. See Waters v. Churchill, 511 U.S. 661, 675-77, 114 S.Ct. 1878, 1888, 128 L.Ed.2d 686 (1994) (plurality opinion) (“The government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as a sovereign to a significant one when it acts as an employer.”). That is not to say that Reverend Lumpkin left his First Amendment rights at the door of City Hall when he took office as a Human Rights Commissioner. It is to say, however, that his First Amendment rights may be trumped by important interests of the City he agreed to serve.

In resolving conflicts between the First Amendment rights of public officials and the interests of government, courts engage in a balancing test. See Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968) [1501]*1501(“the interests of the [employee], as a citizen, in commenting upon matters of public concern” are weighed against “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”); Tucker v. State of California Dep’t of Education, 97 F.3d 1204, 1210 (9th Cir.1996) (applying Pickering balancing test in reviewing First Amendment challenge to restrictions on a public employee’s expression of his religious views); Brown v. Polk County, 61 F.3d 650, 658 (8th Cir.1995) (en banc) (“[Pickering ] dealt with free speech rather than the free exercise of religion, but because the analogy is such a close one, and because we see no essential relevant differences between those rights, we shall endeavor to apply the principles of Pickering to the case at hand.”). When we apply Pickering and weigh the City’s interest in eliminating prejudice and discrimination against Reverend Lumpkin’s First Amendment interest in condemning homosexuality as a sin while serving as a voting member of the Human Rights Commission, the conclusion is inescapable that the City’s interests prevail. As a private citizen, Reverend Lumpkin is perfectly free to preach vigorously and robustly that homosexuality is a sin. But he did not enjoy that same unrestrained freedom while he occupied the important and prestigious office of a Human Rights Commissioner.

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109 F.3d 1498, 97 Daily Journal DAR 4445, 97 Cal. Daily Op. Serv. 2510, 1997 U.S. App. LEXIS 6245, 70 Empl. Prac. Dec. (CCH) 44,585, 73 Fair Empl. Prac. Cas. (BNA) 895, 1997 WL 152778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lumpkin-v-brown-ca9-1997.