Dennis Hodges v. Todd Gloria, Individually and as Mayor of the City of San Diego, California

San Diego’s Mayor vetoed the reappointment of Dennis Hodges, an unpaid member of a municipal advisory board, because, nearly two years earlier and while serving on a different public body, he had explained a sincere Christian belief that God created human beings male and female. The Ninth Circuit held that once “commonality of political purpose” is established as an appropriate requirement for the position, the First Amendment inquiry ends. No Pickering balance is required. Religious motivation and expression change nothing. The questions presented are:

1. Whether the Elrod-Branti exception—which permits consideration of political affiliation only when it is an appropriate requirement for the effective performance of a particular office—categorically forecloses the Pickering-Connick-Garcetti inquiry when an elected official denies reappointment to an unpaid advisory-board member solely because of the member’s prior speech on a matter of public concern, uttered outside the position and unrelated to its duties.

2. Whether the Free Speech Clause, together with the Free Exercise Clause, prohibits an appointing official from conditioning continued public service on disapproval of sincere religious speech about human sexuality when the First and Fourteenth Amendments forbid a religious test for state or municipal office. Torcaso v. Watkins, 367 U.S. 488 (1961).