Recent and ongoing controversies involving First Amendment freedoms pose fundamental questions about the circumstances under which exceptions should be granted to individuals and businesses with objections to complying with general laws. How should these questions be resolved?
The answer may depend on the right in question: religious freedom; free speech; free press; or freedom of association. Although they raise parallel issues, the various rights differ in subtle but important ways, rendering any all-purpose answer problematic.
The Questions
The First Amendment to the U.S. Constitution protects four core rights: free exercise of religion; free speech; freedom of the press; and assembly to petition for redress of grievances, commonly, though somewhat ahistorically considered a right to association. A fifth provision of the First Amendment forbids the establishment of religion, but that is better viewed as a structural limit, rather than an individual freedom.
Although Americans have had these liberties for centuries, recent controversies have raised deep questions about whether they should be understood to entail a right to exceptions from general laws. Complicating matters, some of the controversies arise under federal statutes and state constitutions or statutes. Here, I set aside the important differences among the texts that protect these rights, to focus on common issues they share.
But first, consider how each of these rights has been up for grabs lately, especially with respect to claims for exceptions.
Religion has been most in the news. Later this month, the Supreme Court will hear oral argument in cases posing the question whether the federal Religious Freedom Restoration Act (RFRA) entitles religiously-scrupled owners of a for-profit corporation to an exception from the contraception insurance mandate in the Affordable Care Act (ACA). Meanwhile, without addressing the merits in another case, the Supreme Court already issued an order temporarily excusing nuns from filing a government form that, they complain, would implicate them in the provision of contraception insurance. And late last month, Arizona captured the country’s attention when the legislature sent to the governor’s desk a bill that would have expanded the state’s RFRA, had it not been vetoed.
The Arizona bill would have broadened the scope of the state RFRA with respect for all manner of religious objections, but, as I discussed in my last column, its backers were driven chiefly by fears that religiously-scrupled Arizonans might have to serve LGBT customers or condone same-sex unions. That particular issue has lately also arisen with respect to speech and association rights.
Last year, in Elane Photography v. Willock, the New Mexico Supreme Court considered and rejected a claim by commercial wedding photographers that the application of the state’s anti-discrimination law to require them to offer their services on an equal basis to same-sex couples would violate their right to freedom of speech. As Professor and Justia columnist Sherry Colb noted in her Verdict column discussing Elane Photography, the ruling was somewhat ironic, given that same-sex marriage was not even legal in New Mexico at the time, but since then the New Mexico Supreme Court found a right to same-sex marriage in the state constitution.
Claimants asserting a right to freedom of association have had more success in resisting anti-discrimination laws. With St. Patrick’s Day just days away, organizers of parades in Boston and New York are once again generating controversy because of their refusal to permit LGBT Irish Americans to participate openly. Perhaps negotiations will produce last-minute accommodations, but if so, that will be a matter of grace, not law. In 1995, the U.S. Supreme Court unanimously held in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston that the parade organizers had a First Amendment right not to have the message expressed by their parade diluted by out LGBT marchers, and thus granted the parade an exception from a Massachusetts anti-discrimination law. Although it was no longer unanimous, five years later the Court reached the same conclusion with respect to a New Jersey anti-discrimination law in Boy Scouts of America v. Dale. There, the Court found that the Boy Scouts could exclude an openly gay troop leader on the ground that, in being out, he undermined the Scouts’ right of (homophobic) expressive association.
By contrast, free press claims for exceptions have met with less success, at least at the federal level. The Supreme Court has not retreated from its 1972 ruling in Branzburg v. Hayes, which found that the First Amendment does not provide journalists with even a qualified privilege to protect their sources. Although congressional efforts to enact a federal shield statute have repeatedly failed, states afford varying degrees of protection. That variation can itself be the source of controversy, as is illustrated by a decision of New York’s highest court last December. The court applied New York’s absolute reporter-source shield law to relieve a FoxNews reporter of the obligation to testify in the murder trial of the “Batman killer,” James Holmes, even though Colorado, where the trial will take place, has a less sweeping shield law.
Differing Strength of the Argument for Exceptions
When, if at all, should a First Amendment right shield claimants from general laws? It can be argued that the answer is never. In this view, government only infringes First Amendment freedoms when it targets those freedoms. This categorical rule is appealing both because it is easy to administer and because it appears to treat everyone equally.
For example, although the Supreme Court has interpreted the First Amendment to forbid a state from banning flag burning as such, a political protester is not entitled to a free speech exception from a law forbidding the starting of a fire in a crowded street, even if he starts his fire with a flag. The Supreme Court’s Branzburg ruling takes a similar view with respect to journalists, endorsing the principle that the law is entitled to “every man’s evidence.” Likewise, in its ruling in the 1990 peyote case, the Supreme Court took the same view with respect to religious rituals, warning that religious exceptions to general laws would “permit every citizen to become a law unto himself.”
Nonetheless, there are reasons to think that sometimes a generally-valid law should give way when it substantially infringes a right. But the strength of those reasons varies with the right and the circumstances.
Consider the question at issue in the ACA/RFRA cases pending before the Supreme Court: Whether the religious freedom protected by RFRA extends to corporations? Although it is possible that the text and legislative history of RFRA provide a positive answer, general principles suggest a negative one. While specifically-religious organizations can take the corporate form, business corporations as such do not have religious or moral scruples, even when their shareholders do. For that reason, business corporations face an uphill battle in their quest for religious rights.
By contrast, the case for free speech and free press rights for corporations is considerably stronger. Critics of the Supreme Court’s Citizens United decision sometimes complain that corporations should not have free speech rights. But even as they correctly criticize the Court for understating the risk of corruption of the political process by money, they wrongly focus their attention on the legal fiction of corporate personhood. Corporations have rights to freedom of speech and of the press because listeners have a right to receive information, regardless of the source. Corporations thus have a stronger claim to rights of speech and the press than they have to free exercise of religion.
In other respects, however, religious claims can be stronger. Perhaps the best reason not to give speakers exceptions to general laws is that compliance with a general law typically leaves open adequate alternative means of expressing the same message. Political protesters barred from holding a march on a main thoroughfare during rush hour can reassemble at a different time or in a different place. But a worshipper who is required to work on her sabbath cannot comply with her religious obligations by observing the sabbath on a different day, nor can a peyote cultist substitute some other, legal, substance in his ritual.
The availability or non-availability of alternative means of exercising the right in question also explains why the courts have been fairly sympathetic to claims of expressive association. Such claims are best understood as articulating a right not to associate with particular persons or ideas. And although the right not to speak is derived from the right to speak, the negative right is, in this regard, more fundamental. The opportunity to make statements that one believes in does not negate a requirement to assert a message with which one disagrees. Yes, one can issue a disclaimer, but disclaimers only affect the way in which others receive one’s message; they do not remedy the speaker’s own internal reasons for not wanting to give voice to disagreeable messages.
Is LGBT Equality Different?
As the cases I have canvassed illustrate, arguments for exceptions from general laws arise in a wide variety of contexts. But it would be naïve to overlook the fact that the recent controversies frequently involve claims for exceptions from laws mandating equality for LGBT Americans. Why?
There is no reason in principle why laws forbidding sexual- orientation discrimination would be especially likely to generate claims for exceptions. In earlier times, people asserted similar claims in response to laws forbidding race and sex discrimination as well.
But even as race and sex discrimination persist, there is a broad social consensus against racism and sexism. It appears that we are rapidly moving towards such a consensus with regard to homophobia, but until we get there, people who still harbor prejudice against LGBT Americans will shift from opposing the extension of the anti-discrimination norm (a battle they clearly cannot win) to seeking exemptions from that norm. The duration of large-scale controversy regarding such exemptions will say a lot about our progress towards equality.
Podcast: Play in new window | Download