Fire Department Chaplain Fired for Blog Post About Transgender Controversies Can Go Forward With Lawsuit

The chaplain's post "discuss[ed] 'how God designed each person as male or female, and that sex is immutable'" and "stated it is unfair to allow males to compete in women's sports."

From today's opinion by Judge David Alan Ezra (W.D. Tex.) in Fox v. City of Austin:

In 2013, Dr. Andrew Fox ("Plaintiff") began volunteering as the Lead Chaplain at the Austin Fire Department ("AFD"). The chaplain program is part of AFD's Wellness Center, which houses numerous support services for firefighters, as well as other programming related to the physical and mental health of first responders. Plaintiff spent upwards of ten hours per week—all unpaid—ministering to AFD members and running the chaplaincy program.

Off AFD premises, Plaintiff maintained a blog where he discussed various aspects of the Christian faith. In 2021, Plaintiff began writing blog posts discussing "how God designed each person as male or female, and that sex is immutable." Specifically, he stated it is unfair to allow males to compete in women's sports. According to Defendants, the blog posts were calculated to provoke and "trigger" readers.

After hearing about the blog and finding it offensive, Lieutenant Xolochitl Chafino, AFD's LGBTQ Liaison, informed Chiefs Baker and Vires. At the time, Baker and Vires were unaware of the blog's existence. After some AFD members found the blog post upsetting and insulting, Baker and Vires met with Plaintiff to discuss their concerns. According to Plaintiff, the meeting went well and included "genuine[ness]" and "respectful dialogue." However, this meeting did not resolve the conflict.

Thereafter, Chafino printed out copies of the blog to solicit comments from AFD members, civilian employees, and outside individuals. Chafino also met with Plaintiff on multiple occasions. At one meeting, Chafino felt that Plaintiff stereotyped LGBTQ people and told Vires that she never wanted to meet with Plaintiff again. Moreover, she told Baker that AFD personnel would never seek services from Fox or the chaplain program again.

Baker and Vires directed Plaintiff write an apology for his blog post. Baker believed this would restore faith and confidence in the AFD chaplain program. Baker intended the letter to communicate that AFD personnel should feel welcome using the chaplain program, regardless of their identity or beliefs. However, Baker and Vires were not satisfied with the letter. Rather, Baker found it defensive and accusatory. Plaintiff then wrote a second apology. Baker found the second letter equally unsatisfactory and Plaintiff was terminated from serving as a volunteer chaplain….

The court applied the Pickering v. Bd. of Ed. (1968) test applicable to the government's action as employer; under that test, an employer can discipline or terminate employees for their speech, even on matters of public concern, but only if the harm caused by the speech to the employer's operation outweighs the value of the speech. (Among other things, this essentially allows a sort of "heckler's veto" under which, if enough people complain about the speech, it can indeed be restricted.) And the court concluded that the evidence wasn't clear on the degree of harm to the employer:

When balancing the interests, the Court will focus on "how the speech at issue affects the government's interest in providing services efficiently: it is the speech's detrimental effect on the efficient delivery of public services that gives the government a legitimate interest in suppressing it."

The Government argues it had a legitimate interest in terminating Plaintiff. The chaplain's role is to listen and comfort the firefighters, not provoke and divide. Chief Baker was also concerned that some AFD employees would choose to no longer seek help from AFD's mental health services. ("[Mental health is] a serious issue throughout the fire service…so if a member [doesn't] have faith that…they can go to… the chaplain service in a non- biased manner, then that's a problem for me as the fire chief…") ("I wanted to make sure I was not going to have any disruption because when [Lt. Chafino] reported to me that her and others [were] not going to use the chaplain service or Chaplain Fox, that was enough disruption for me to say 'hey I've got to do something immediately.'") Moreover, chaplains were sometimes called to emergency scenes to provide comfort to firefighters and community members. Chief Baker feared that these emergency operations could be disrupted if Plaintiff appeared at the scene. Moreover, Baker feared Plaintiff's speech would create a negative perception that the AFD would not serve all community members equally.

The Court finds that there is a genuine dispute of material fact regarding the impact that the blog had on the AFD. The parties vehemently disagree over whether those offended by the blog made up a small cohort of employees who never attended the Champlain services or whether the blog had a broader impact. For instance, Plaintiff argues that for the most part, AFD employees were unaware that Plaintiff even wrote a blog. However, at the hearing on August 15, 2024, Defendant described a chain of AFD employees who were aware of the blog and brought it to Chief Baker's attention.

Moreover, Plaintiff argues that there is no evidence that actual usage of the chaplaincy decreased. However, Defendants note that AFD employees stated that they refuse to attend the services because of the blog. Ultimately, there is a genuine dispute of whether the government's legitimate rationale for termination in the abstract is supported by the facts of this specific case.

This case is unlike Cochran v. City of Atlanta (N.D. Ga. 2017). In that case, a fire chief was terminated because of his religious speech. The court found that Plaintiff's status as the Fire Chief—and thus the head of a safety agency—also favored the City. The court found it was not unreasonable for the City to fear public erosion of trust in the Fire Department. Indeed, the court noted the expressive activities of a highly placed supervisory employee will be more disruptive to the operation of the workplace than similar activity by a low-level employee with little authority or discretion. Like in Cochran, in Nixon v. City of Houston (5th Cir. 2007), a police officer authored a monthly column in a local magazine. The officer identified himself as a police officer and wrote offensive and disrespectful comments about certain groups of citizens in the column, including derogatory remarks about minorities, women, and homeless individuals. The Court applied Pickering and found that the officer's articles were not protected by the First Amendment. The Court found that the articles written by the officer could negatively interfere with the police department's relationship with the community and would thus interfere with the efficient operations of the department.

However, the facts in Cochran and Nixon do not apply to this case. For one, the present case involves a voluntary chaplain. In this case, there is a genuine dispute as to whether his position has ever or could impact the fire department's relationship with the community. There is a dispute over whether the anyone would perceive his online blog to impact the creditability or trust in the fire department. The parties genuinely disagree as to whether the public tied Plaintiff to the AFD. Unlike in Nixon, Plaintiff never identified himself as a member of the AFD when writing the blog. However, at the hearing on August 15, Defendant said that he was identified as part of the AFD by virtue of a hyperlink to his Facebook page.

The Fifth Circuit has said a government's interest is stronger when a public employee has a policymaking or confidential position. But given the nature of Plaintiff's position and the fact that he provides emergency services [to] frontline firefighters, the Court cannot say that this factor is determinative.

"[R]eal, not imagined, disruption is required." And "[m]ere allegations of disruption are insufficient." In this case, there is a genuine dispute of material fact regarding the extent of the disruption that occurred within AFD. Therefore, the Court denies the cross motions for summary judgment on the free speech retaliation claim….

Because of this case, the case can presumably proceed to trial.

The court also concludes that Pickering should apply to the plaintiff's Free Exercise Clause claim, and that it yields the same result. The court then turns to the Texas Religious Freedom Restoration Act, which protects religiously motivated conduct, with no special provision for government employees, by requiring that any restrictions on such conduct pass the demanding "strict scrutiny" standard:

Defendants argue they have a compelling interest in ensuring that firefighters feel comfortable accessing mental health services due to the stressful nature of their jobs. Defendants also believe there is a compelling interest in preventing conflict and division among AFD personnel. As stated earlier, the Court agrees that these interests may be compelling in the abstract. However, there is a genuine dispute as to whether these interests apply in practice to the present case.

There is a genuine dispute of material fact regarding if or how Plaintiff's blogs impacted mental health services he provides to both AFD and the community at large. There is a genuine dispute of fact regarding whether the blog impacted the number of people who would feel comfortable attending chaplain services prospectively. Beyond the few initial employees who discovered the blog, AFD employees were unaware Plaintiff wrote a blog. However, there is evidence to suggest that more people became aware of the blog. The parties also present contested evidence regarding whether Plaintiff could be identified as an AFD volunteer chaplain through his blog. Therefore, there is a genuine dispute of fact regarding whether his blog discussing his religious beliefs could negatively impact the relationship between AFD and the Austin community. Moreover, there are questions of fact underlying whether Defendants' request for an apology was the least restrictive means in burdening Plaintiff's religious speech.

Finally, the court concludes that requiring the apology didn't violate plaintiff's freedom from speech compulsions, partly because "Plaintiff was asked to write the letters pursuant to his official duties as a volunteer chaplain" and the First Amendment generally allows the government to control an employee's speech when the speech is part of his official duties:

The purpose of the letter was to restore faith and confidence in AFD's official chaplain program. Chief Baker planned to send the letter out to the AFD community through official channels with the hope that all would feel welcome to continue to use the chaplaincy program.

The Court finds that it was permissible for the fire department to request an apology note. It does not violate the First Amendment to ask an employee or volunteer to make an official statement to maintain a harmonious and orderly workplace. While there is not much precedent on this issue, other courts have signaled that compelled apologies in similar contexts do not violate the First Amendment.

Requesting this letter does not violate the First Amendment's prohibition on compelled speech because this letter was going to be used as an official AFD communication and Fox was directed to write it as part of his duties as volunteer lead chaplain. When public employees speak pursuant to their official duties, employees are not speaking as citizens for First Amendment purposes.

Comments

[Dr. Ed 2]

Austin isn't really in Texas....

[Longtobefree]

True.
What I can't figure out is if it is a suburb of LA or NYC - - - - - - - - - -

[ReaderY]

Applying Pickering to a dispute between a government and a chaplain? Huh? Whatever the standard is, it can’t possibly be Pickering. Pickering doesn’thave anything to do with religious speech. There is a special line of cases for that.

Either, per Marsh v. Chambers, the Chaplain’s prayer and religious views belong entirely to the fire department’s personnel, and they can hire and fire at will, whoever best reflects their own religious outlook, or, per Town of Greece, they belong entirely to the Chaplain, and the fire department has no right to concern themselves with it.

Either way, there is a specific, unique standard for evaluating government disagreement with a government chaplain’s religious speech, which is based on the Religion Clauses, not the Speech Clauses. These disputes have to be decided under the unique standard specific to government chaplain religious speech. They have nothing to do with and should not be decided under standards applicable to general, not specifically religious speech by general, not specifically religious government employees or agents.

[ReaderY]

In particular, the Religion Clauses do not permit government to balance how important people’s religious beliefs are to themselves vs. to the governemnt. Judicial balancing of a type done in secular matters is simply not permissable where religion is involved.

[Josh R]

As noted in Kennedy v. Bemerton, when a government employee's speech involves religious beliefs, the Court did not resolve whether a higher standard than the Pickering balance test applies.

[ReaderY]

If the facts of Kennedy were that the Bremerton School District had hired Coah Kennedy as a school chaplain specifically to lead its football team in prayer, then I’d agree that the Kennedy decision would be relevant to this case. But the Supreme Court specifically held otherwise. It specifically said that Coach Kennedy was NOT hired as a chaplain, he was NOT hired specifically to provide prayers, and his prayers were NOT specifically part of his job and done as part of his employment.

In other words, the Supreme Court specifically held that its analysis in Bremerton is not applicable to the facts of a case like this. Indeed, the outcome of Bremerton would have been completely different if the facts had been similar. While a public fire department can hire a chaplain under the line of cases including Marsh v. Chambers and Town of Greece, a public school most definitely cannot. So my argument that the analysis for addressing the religious speech of a fire department chaplain is totally different from that of a public school non-chaplain ordinary teacher, addressed by a completely different lime of cases, shouldn’t be a surpise. Under Bremerton, hiring this Chaplain was completely illegal in the first place, so firing him merely brought the government into constitutional complaiance and it would be chutzpah of him to come to the courts complaining aboit it. Only because the usual precedents don’t apply here is a government job as a chaplain even constitutional at all.

Of course the line of cases for religious speech by government employees not hired for specifically religious roles is totally irrelevant.

[Josh R]

In other words, the Supreme Court specifically held that its analysis in Bremerton is not applicable to the facts of a case like this.

Right. Bremerton did not settle what standard should be used in the facts of this case. Nor does Marsh, which is limited to leading prayers before a legislative session because of historic practice.

It remains unsettled what the standard is for this case.

[ReaderY]

If you disagree with Marsh you’d understandably want to limit it to its specific facts. But it’s an entirely reasonable readng of Marsh to say it applies to public chaplains more generally.

Marsh specifically decided, among other issues, whether the Nebraska legislature’s decision to retain (not just initially hire) its chaplain represented an establishment of religion. In rejecting the argument, the Supreme Court articulated a standard and said that under the standard, retaining the chaplain long-term didn’t violate the Establishment Clause. I quoted from its decision on this point elsewhere on this post.

I’m absolutely entitled to say that this aspect of the Marsh decision articulates a general standard applicable to deciding whether hiring and firing decisions regarding government chaplains violate the Establishment Clause or not. This guy was a government chaplain. He was fired. I’m absolutely entitled to ask the question, “was he fired in a way that violates the Establishment Clause?” And I’m entitled to look to Marsh and its standard for guidance on how to answer that question.

[Josh R]

The plaintiff claims his Free Exercise and Freedom of Speech rights were violated by his hiring. There is no mention of the Establishment Clause.

[ReaderY]

If he didn’t, his lawyer is an idiot. Not only does he have an open and shut Establishment Clause claim, but I think the court isn’t permitted to adjudicate his Free Speech claim, because I think doing so would require the court to itself violate the Establishment Clause by impermissibly involving itself in matters of religious doctrine. I think it’s impermissable to apply Pickering balancing to religious statements by a government chaplain.

[Josh R]

I’m not following how the Establishment Clause precludes him from being fired.

Pickering balancing does not involve government making any determination about what religious doctrine is.

[Josh R]

In neither Marsh nor Town of Greece were the cerlgy employees.

[ReaderY]

Indeed they were. The Nebraska Legislature in Marsh hired and paid its chaplain. Moreover, it’s totally irrelevant. This fire department chaplain is an unpaid volunteer. His compensation package isn’t relevant to First Amendment questions, whether based on the Speech or the Religion clauses, regarding his role as a specifically government chaplain.

[ReaderY]

As the Marsh court said, “Nor is the chaplain’s compensation from public funds a reason to invalidate the Nebraska Legislature’s chaplaincy; remuneration is grounded in historic practice initiated, as we noted earlier [citation omitted], by the same Congress that drafted the Establishment Clause of the First Amendment.”

[Rossami]

I think not. Marsh and Town of Greece talk only about the constitutionality of having a chaplain, not about what the chaplain says and especially not about what the chaplain says when outside his scope of employment.

I also think you are misstating Marsh. That case merely said that government funding for chaplains was constitutional. There is an entirely different line of cases that say religious institutions may discriminate in their hiring in order to ensure that their employees consistently deliver their chosen religious outlook. But that is entirely irrelevant here because a public institution like a fire department may have no particular religious outlook in the first place.

[ReaderY]

Marsh says it can. Marsh says the Chaplain is hired for the benefit of the government employees served, and they are entitled to pick one they are comfortable with, including one who better reflects their religious outlook. The Nebraska legislature was entitled to do this under Marsh. Why not this fire department?

One could argue Town of Greece changes this. But what it doesn’t change is that the analysis os sui generis, covered by its own line of precedents, and precedents for goveremt employees who arenmt hired and fired specificslly as chaplains have nothing to do with it.

I frankly don’t see that a rule that you can’t consider a chaplain’s religious beliefs in deciding whether to hire the chaplain would be workable. If the fire Department members are 70% Catholic and 30% evangelical Protestant, can a Wiccan would-be candidate really argue that the fact that none of the fire department members want or woild be comfortable with her as their chaplain can’t constitutionally be considered in deciding whether to hire her?

[ReaderY]

Under Marsh, as I read it, the fire department can fire the chaplain because its members don’t feel comfortable with him, but it can’t fire him specifically because it disagrees with his religious views, and particularly not because his religious views violate some sort of written government policy. To do so would violate the Establishment Clause. And the Establishment Clause, unlike the Free Speech Clause, is not subject to a balancing principal.

Pickering was a purely Free Speech case. It doesn’t address the government’s obligations under the Establishment Clause at all.

As I see this case, the Chaplain wins as things stand. The reaon for firing him was his religious statements violated its written policies. That violates the Establishment Clause pretty straightforwardly. Plain and simple. No balancing.

But if the Department were to have taken a different and better informed approach – fired him because firefighters had approached HR saying they felt uncomfortable with him, without saying anything about the reasons why – that would have been fine under Marsh.

Either way, there is no basis for courts to conduct any balancing of any kind. The concept of balancing just isn’t relevant to disputes over government bodies’ decisions to hire or fire chaplains. In such disputes, the primary limitation on government is the Establishment Clause, not the Speech Clause. And the Establishment Clause analysis is completely different from Speech Clause analyses involving general government employees’ freedom of speech, even if the correct analysis sometimes leads to the same result.

[Joe_dallas]

The cass review blows serious holes through the delusions pushed by WPATH (World Professional Association for Transgender Health)

Among its many findings:

“The systematic review showed no clear evidence that social transition in childhood has any positive or negative mental health outcomes, and relatively weak evidence for any effect in adolescence.”
On puberty blockers: “[N]o changes in gender dysphoria or body satisfaction were demonstrated. There was insufficient/inconsistent evidence about the effects of puberty suppression on psychological or psychosocial wellbeing, cognitive development, cardio-metabolic risk or fertility.”
On cross-sex hormones: “There is a lack of high-quality research assessing the outcomes of hormone interventions in adolescents with gender dysphoria/incongruence, and few studies that undertake long-term follow-up. No conclusions can be drawn about the effect on gender dysphoria, body satisfaction, psychosocial health, cognitive development, or fertility. Uncertainty remains about the outcomes for height/growth, cardiometabolic and bone health. There is suggestive evidence from mainly pre-post studies that hormone treatment may improve psychological health, although robust research with long-term follow-up is needed.” (Quoting University of York “systematic review.”)

[Malika the Maiz]

Here’s what Cass herself said about the findings: “There are young people who absolutely benefit from a medical pathway, and we need to make sure that those young people have access — under a research protocol, because we need to improve the research — but not assume that that's the right pathway for everyone."

[Bruce Hayden]

I have no problems with adults changing genders. My problem, and that of many, is when kids do it, and esp. when their parents are prevented from being involved. Personally, I would prefer a 21 year old cutoff (because our brains are still maturing before then), but could live with 18. Just my thoughts.

[Bruce Hayden]

It’s going to be interesting, in view of that decision. I think that the plaintiff has a decent chance, just because the defense is unlikely, in my view, to find that many AFD employees who support transgenderism that strongly. Even in Austin. And those few who do, likely wouldn’t be using traditional chaplains in the first place, due to their religions’ traditional opposition to that. My experience is that fire fighters are even more macho, and hypermasculine than police. It takes a certain type of person who is willing to run into burning buildings in order to save lives, and that sort of selflessness is rare in the transgendered community.

Of course, it is Austin, so I may be wrong. But at least the plaintiff will be given the chance to prove his case.

[Joe_dallas]

Bruce regarding your "austin " comment. Like most metro areas, austin is very progressive, yet a few short miles outside the city, it becomes very republican. Its also the western district of Texas austin division so the jury pool, if it goes to a jury, will be a good mix of the political spectrum.

[Bruce Hayden]

I actually lived there for maybe 5 years, in the mid 90s. Love/hate relationship with the city.

[Dr. Ed 2]

Wanna bet the firefighters live outside the city?

[Malika the Maiz]

“that sort of selflessness is rare in the transgendered community.”

Citation?

[Dr. Ed 2]

Well, if trannies weren't so emotionally fragile, hey wouldn't be at such a suicide risk.

[AmosArch]

'You can't change your sex by swallowing a few hormones and wishing real hard'

PROVOCATIVE. TRIGGERING

[not guilty]

The District Court got it right that factual disputes preclude summary judgment here. I note, however, that the opinion does not discuss whether there is a policy or custom that would give rise to municipal liability under § 1983 pursuant to Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978).

It is not clear from the opinion whether Chiefs Baker or Vires had final policymaking authority for the City of Austin so as to bring the matter into the ambit of Pembaur v. City of Cincinnati, 475 U.S. 469 (1986).

[MollyGodiva]

Being open minded and non-judgmental is a critical part of providing mental health services. If he wants to be a homophobic bigot, he can go work for a Christian Ministry. The AFD should not be having anything to to with providing religious services to their employees.

[Krayt]

Why does a fire department even have a chaplain? Are they concerned about a need for last rites and no time to call someone in? I wasn’t even aware there was such a position.

I can see the military taking some along, as they go afar, necessarily stripping the troops of regular service otherwise, as well as last rites.

[mulched]

Many most police departments have them as well, plus hospitals. Military, police and fire are all high stress environments where life-or-death or at least life-changing events are bound to happen and religious/spiritual help may not be otherwise available.

They don't provide mental health services in the medical sense (referrals if that's needed). They are there to provide care and comfort, which is what's needed instead of medical mental health treatment in a lot of situations.

Usually they can do that without being too identified with a specific faith, even though they themselves belong to one.

It's something that works very well when a big majority of the area has a common set of beliefs. Where beliefs are fragmented or where small differences of belief may be magnified by controversy, it breaks down.

[ReaderY]

They are entitled to under Marsh v. Chambers and its progeny. Whether you like it or not.

Your finding their religious beliefs personally displeasing is no more relevant than if you had found their race displeasing. Government can no more refuse to hire people because you consider their religious beliefs primitive, savage, and unenlightened than because you have similar opinions about their complexions.

[Nom de plume 888]

It's the anti-science trans activists (especially autogynephilic straight males) who are homophobic in trying to erase same sex attraction.

[SRG2]

The correct response was not to fire him, but to announce that the AFD is sufficiently tolerant of people and respectful of 1A that it is still willing to give employment to an intolerant bigot.

[ReaderY]

As I wrote above, the department was not entitled to fire him as it did. What it did was a clear violation of the Establishment Clause. But it would have been fully entitled to fire him if its officials, perhaps based on better legal advice about which constitutional clause is most relevant and what it requires, had jumped through the right hoops and said the right magic words.