Understanding Liberty: The Constitution’s Neoliberal Turn

The three major essays and two smaller pieces that form this dissertation focus on the recent deregulatory turn in U.S. constitutional law. They analyze changing, and often competing, understandings of liberty and its relationship to concepts of welfare, choice, democracy, and the purposes of the state. Over the past forty years plaintiffs have increasingly invoked the Constitution, and the free speech clause in particular, in efforts to avoid economic regulation. Areas of life that were once thought irrelevant to the Constitution have become the fodder of pitched litigation, circuit splits, top appellate practices, and United States Supreme Court review. This dissertation traces the origins of that emerging constitutional revolution, which I describe as the Constitution’s neoliberal turn, and analyzes its implications for administrative practice, theories of democratic legitimacy, and constitutional change. The dissertation is animated by several questions: How do social processes structure law, and how is it structured by them? How does the law conceive of the person, liberty, welfare, democratic participation and legitimacy, and the purposes of the state? The essays herein are prominently informed by both doctrinal and legal realist perspectives. Several draw strongly on social science research, particularly in psychology and behavioral law and economics. The first major essay, The New Lochner, traces two of the key forces that have led to greater conflict between the First Amendment and modern administrative state: (1) a business-led social movement has fostered a deregulatory turn in commercial speech law and (2) administrative law and practice have shifted toward lighter-touch forms of governance that appear more speech-regulating. While a number of scholars have labeled the deregulatory use of the First Amendment a type of Lochnerism, this piece analyzes that analogy to identify the distinctive features of contemporary constitutional deregulation. Those distinctive features include: (1) Different scopes—contemporary constitutional deregulation is broader more trump-like than Lochner-era economic liberty. (2) Different theoretical justifications—where Lochner was based in the theory of Adam Smith and laissez-faire capitalism, advocates of the new Lochner largely base their arguments on the idea that “all speech is speech.” And (3) different baselines—where Lochner rested on the common law distribution of entitlements, the new Lochner largely rests on the apparent obviousness of what constitutes speech. The paper argues that because of the pervasiveness of speech and expression, the First Amendment sets the fullest boundary line of state power. As a result, if taken to its logical conclusion, the argument advanced by advocates of First Amendment deregulation—that all expression is speech for constitutional purposes, and all speech should be subject to the same stringent level of judicial scrutiny—would render democratic self-governance impossible. The first shorter essay, Adam Smith’s First Amendment, which was co-authored with former Dean Robert Post, provides a theorization of the democratic purpose of the First Amendment that, we argue, the First Amendment’s recent deregulatory turn subverts. The second major paper is First Amendment Coverage. First Amendment coverage—the term for the practices to which “the freedom of speech” extends—has been notoriously resistant to both description and theorization. At the same time, First Amendment coverage is currently undergoing great transformations: more of the regulation of economic life is seen in U.S. legal culture as of constitutional moment. This piece provides, first, a positive account of coverage. I demonstrate that while the First Amendment is often thought of as libertarian, its scope reflects the reverse: the social logic of and need for cohesive norm communities. Second, the piece provides a proscriptive argument about how we should approach First Amendment coverage, namely with consideration of those social and institutional contexts. In Business Licensing & Constitutional Liberty, the second shorter essay, I present current constitutional claims about business licensing in the context of the abovementioned trends. I argue that the important thing about these cases has little to do with licensing per se, but instead relates to the expansion of the Constitution and competing substantive understandings of liberty and the proper roles of the state and judiciary within U.S. legal culture. The last paper, The Tragedy of Democratic Constitutionalism, analyzes the broader shift towards a vision of liberty that is defined as freedom from the state and that views market ordering as central to the meaning and operationalization of constitutional liberty. This shift, the paper documents, is occurring not only under the Speech Clause but across a range of constitutional doctrines. The paper critiques the three major justifications for the emergent view of constitutional liberty—one from classical economics, one from originalism, and one from libertarian philosophy: (1) The paper notes that we might contest the importation of neoclassical principles into constitutional law on the grounds articulated by behavioral law and economics scholars. Even bracketing the empirical question of whether people act in consistently rational, wealth-maximizing ways, however, the justification from classical economics faces a steep challenge on its own terms. Namely, rational self-interest, even if stipulated, may not lead to optimal social welfare outcomes, as Garrett Hardin observed in The Tragedy of the Commons. (2) I argue that the living constitutionalist means by which the emergent model is being constructed is also contrary to the methodology from which originalism derives its normative force. (3) The justification from libertarian philosophy fails, too, because it offers no reason that its version of liberty should supplant others in constitutional law, particularly in a country of diverse values. And it ignores both the ways in which non-governmental forms of power structure choice, as Robert Hale observed, and the dimensions of lived freedom that depend on social interdependence rather than autonomy. The paper then situates the emergent constitutional shift within broader theories of constitutional change. It builds off the fact that the U.S. constitutional system is one of open-textured rights, the meanings of which are sensitive to litigant advocacy and norm change, as a deep literature in democratic constitutionalism has traced. Against the backdrop of a highly unequal world, the paper argues, this sensitivity exerts a system-tilt towards constitutional visions of liberty, like the emergent one, that entrench existing distributions of wealth, power, and status—as a product of contingent, if persistent, institutional, and cultural arrangements. That same sensitivity of the U.S. constitutional system to social forces, however, makes the trend toward status-quo-entrenching understandings of liberty one that a sufficiently mobilized populace can overcome

Adam Smith\u27s First Amendment

Until recently, Washington, D.C., maintained what most would regard as a perfectly ordinary licensing scheme for tour guides. In 2014, the D.C. Circuit declared the scheme unconstitutional under the First Amendment in a remarkable case entitled Edwards v. District of Columbia. The court announced that the District\u27s regulations must be reviewed under intermediate scrutiny because they burden speech; the regulations made it illegal to talk about points of interest or the history of the city while escorting or guiding a person who paid you to do so without first obtaining a license. Licenses were awarded to those who passed a test and paid a $200 registration fee. After a rather scathing review, the court concluded that the regulations failed directly to advance the government\u27s interest in protecting D.C. tourism from dishonest or unsatisfactory tour guides. It found that the private market - operating through rating sites like Yelp and TripAdvisor - was instead sufficient to turn the coal of self-interest into a gem-like consumer experience, thereby rendering the District\u27s scheme superfluous

Anti-Woke Capitalism, the First Amendment, and the Decline of Libertarianism

Firms across the globe, including financial institutions like banks, asset managers, and pension fund managers, are adopting strategies to account for the risks they face from climate change. These strategies include declining to invest in certain emissions-intensive projects or advising firms in their portfolios to report or reduce climate impacts and risks. These forms of private environmental governance can be characterized as one aspect of the “E” within a broader management strategy of “ESG,” or the management of environmental, social, and governance factors. Regulators in the United States and other countries are beginning to mandate that firms take some of these factors into account. With the rise of firms’ consideration of ESG factors has come backlash, often under the umbrella of anti-wokeness. This backlash has come to a head in the form of state laws prohibiting state agencies and municipalities, including state pension funds, from doing business with financial institutions that are alleged to be “boycotting” the fossil fuel industry or that are broadly taking ESG factors into account. These laws are part of a larger trend of targeting firms’ decisions to address social and governance issues like declining to invest in gun manufacturing or taking positions on other social issues, including racial justice, abortion, and LGBTQ+ rights. The last three decades of First Amendment law have been strongly influenced by laissez-faire constitutionalism, stemming in significant part from the adoption of libertarian ideas by the conservative legal movement. New so-called “anti-woke” capitalism laws represent a fundamental shift in the conservative legal movement away from libertarianism, First Amendment Lochnerism, and deregulatory constitutionalism and toward identitarianism and efforts to directly influence the substance of firm decision-making. This Article traces this important turn away from laissez-faire law and policy, which has significant constitutional implications, particularly for the First Amendment. These anti-woke laws, and the identitarian politics they reflect, may foreshadow a similar turn in First Amendment law. At the same time, these laws raise important First Amendment issues. These include the difficult questions of when a governmental motive is sufficiently untoward to trigger heightened scrutiny or render a law unconstitutional, and when a social practice should be considered a medium of expression in public discourse for constitutional purposes. These issues have long vexed courts and scholars and are also crucial to the disposition of many of today’s most contested First Amendment questions. This Article offers the first in-depth constitutional analysis of these so-called “anti-woke capitalism” laws. Rather than declaring that some of these laws—which vary across doctrinally significant axes—are constitutional or unconstitutional, this Article focuses on articulating the questions and constitutional values that should guide analyses of these laws and others like them that regulate social practices at the intersection of political and economic life. By focusing on the First Amendment’s underlying objectives—to protect decisional and participatory liberty in both political life and the marketplace—this Article uses these laws as a lens to clarify and rethink existing doctrinal categories in order to forward a conception of the First Amendment that advances democracy in a thoroughgoing way

Corporate Political Power: The Politics of Reputation & Traceability

We live, it is said, in a second Gilded Age, in which politics is dominated by corporate power and elite business interests. But how does corporate money flow into politics? This Article provides an original empirical analysis of when and why corporations engage in particular forms of political activity and uses those findings to develop a novel, empirically-grounded approach to the First Amendment’s treatment of traceability mandates in politics. We analyze the conditions under which firms shift between (1) using their political action committees (PACs) to contribute to candidates and political parties, and (2) engaging in less traceable forms of political activity, like lobbying, in which the specific targets of firms’ influence efforts are unknown. This Article identifies a key variable that explains when and why corporations shift from lighter (more traceable and direct) to darker (less traceable and more indirect) channels of political engagement. We demonstrate that corporate political activity grows darker as a firm’s reputation grows more negative. This dynamic produces the disquieting result that the corporate political interventions that are likely to be the most controversial are also those most likely to be deployed in ways the public is least able to monitor. Our findings indicate that the traceability of money creates a concrete limit on the ability of corporate actors to influence politics—a limit which plausibly applies to political giving more broadly. Corporate donors who are seen as political liabilities find it increasingly difficult to locate politicians who will openly take their money or accept other support. Politicians refuse or return traceable donations from disreputable donors. Our research thus demonstrates that the power of business in politics is more conditional than generally appreciated. This Article uses these empirical findings to interrogate the relationship between traceability mandates in politics and theories of the First Amendment. While the Supreme Court has prominently struck down restrictions on money in politics in cases like Citizens United v. Federal Election Commission, it has repeatedly upheld a variety of disclosure requirements. For a range of reasons, including the Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta, however, disclosure mandates are likely to become an increasingly important site of conflict in both policy and litigation, making it ever more important to assess and theorize the justifications for them. Our research suggests an empirically-grounded justification: traceability alters politicians’ behavior, causing them to act more consistently with public opinion. In other words, traceability mandates make politicians more accountable to the people. At the same time, there is evidence that traceability policies, and the reduction of darker corporate money in politics they produce, promote the public’s belief that their views shape the political system. Traceability mandates, in sort, advance both objective and subjective forms of democratic accountability. We thus argue that policies that advance the traceability of corporate money in politics not only further core First Amendment values but may be required by them. By identifying how and why corporate money flows into politics at a fine level of detail, this Article also provides important information that policy makers can use to craft campaign finance and lobbying reforms. Our empirical findings and theoretical analysis support policy changes that increase the traceability of corporate money in politics, including broader and more robust disclosure requirements for corporate lobbying and individual donations made by corporate executives and directors

Say What You Will?: Government Compelled Speech

The following is a transcript of a 2018 Federalist Society panel entitled Say What You Will?: Government Compelled Speech. The panel originally occurred on November 16, 2018, during the National Lawyers Convention in Washington, D.C. The panelists were: Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, University of California Los Angeles School of Law; Mark L. Rienzi, Professor of Law, Columbus School of Law, The Catholic University of America and President, the Becket Fund for Religious Liberty; and Amanda Shanor, Assistant Professor, Legal Studies & Business Ethics, The University of Pennsylvania Wharton School. The moderator was the Honorable Sandra Segal Ikuta of the United States Court of Appeals for the Ninth Circuit

“LGBTQ+ Need Not Apply”

In a surge of recent court cases, businesses open to the public—in industries ranging from photography to florists, and wedding services to foster care placement—have invoked constitutional rights to refuse to serve LGBTQ+ people. The most prominent case to date was Masterpiece Cakeshop v. Colorado Civil Rights Commission, a 2018 case that involved a bakery asserting the right to refuse to sell a wedding cake to a gay couple. Today, court cases in which businesses claim a right to deny employment to LGBTQ+ people in the face of antidiscrimination regulations are similarly accumulating following the Supreme Court’s ruling last year in Bostock v. Clayton County, Georgia. The Court in Bostock held that Title VII of the Civil Rights Act of 1968—the federal employment nondiscrimination law—forbids discrimination against employees for being gay or transgender under the Act’s prohibition on discrimination “because of … sex.” Although in some sense these cases are a new and important development, they also form part of a larger arc of entities claiming that they have the right to refuse service or employment to certain groups—such as Black people, immigrants, or women—that reaches back at least a hundred years. Over many decades, the Supreme Court considered and rejected the arguments of employers and public accommodations, such as restaurants and hotels, that claimed constitutional exemptions from antidiscrimination laws. After the passage of the Civil Rights Act of 1968, which prohibited discrimination in both employment and public accommodations, the Supreme Court rejected the argument of an Atlanta motel that the Fifth Amendment gave it the right to refuse service to Black customers. The Court similarly rejected the contention of the prominent law firm King & Spalding that the First Amendment protected its freedom of association right to make only men, not women, partners. The Supreme Court described as “patently frivolous” a barbeque restaurant’s argument that the Civil Rights Act of 1968 was invalid because the requirement to serve Black patrons assertedly “‘contravenes the will of God’ and constitutes an interference with the ‘free exercise of the Defendant’s religion.’” And in two cases—one involving a federal law that required private schools to desegregate, and another involving the tax-exempt status of Bob Jones University, which prohibited interracial dating and marriage as part of its religious mission—the Court held that private schools do not have constitutional rights to adopt racially discriminatory policies or admissions practices. These decisions made two related moves. First, they restored the common law duty of businesses open to the public to serve the public on a nondiscriminatory basis. This duty prevailed before the Civil War but was abrogated after Reconstruction by racially discriminatory southern laws. Second, these decisions reflected the view that schools and employers are institutions that are open to the public and critical for public participation in what it later described as the basic “transactions and endeavors that constitute ordinary civic life in a free society.” Masterpiece again raised this question of whether the Constitution protects a right to refuse service or employment to a class of people on religious or moral grounds. Importantly, in addition to a free exercise of religion claim, the cakeshop made a free speech claim. Masterpiece argued that it could not be required to sell a cake to a gay couple because doing so would compel it to express a message of support for gay marriage. Court watchers speculated that the Supreme Court might change course in Masterpiece from its consistent rejection of such claims because, for over three decades, the Court had adopted an increasingly robust and libertarian view of the freedom of speech, particularly in economic life. The Court had expanded the sorts of activities that are protected as “speech” or expression and are subject to heightened judicial review. By contrast, free exercise jurisprudence had remained relatively stable. For example, the Court’s 1990 decision Employment Division v. Smith had remained good law. Smith held that generally applicable laws that are neutral toward religion—that is, do not target or disfavor religion—receive the lowest level of judicial scrutiny, rational basis review. Many observers speculated at the time of Masterpiece that Justice Kennedy was looking to carve out a free speech right not to sell wedding cakes to gay couples, to balance the scales after granting major wins to the gay community. The bakery’s argument, however, turned out to be too expansive for the Court to accept. Why? Humans are expressive animals and almost anything they do can be understood as expressive. For this reason, recognizing an expressive right not to serve a customer would not only threaten most civil rights laws but potentially government regulation more broadly. If refusing to abide by a nondiscrimination law is a constitutional right, why not refusing to abide by any other type of law because of what adhering to it might express? The Court did not take the course urged by the bakery. Instead, it emphasized the “general rule” that religious “objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” In doing so, the Court affirmed established constitutional principles. The bakery won the battle but lost the war. The law around religious exemptions, however, is swiftly changing. The Supreme Court is now stocked with Justices for whom religious liberty is a central or perhaps even primary concern. The new majority has already begun dramatically remaking religion law in ways that may provide religious exemptions to refuse service or employment to the LGBTQ+ community. Although the Court’s recent decision in Bostock held that Title VII protects LGBTQ+ people against discrimination as part of its prohibition against discrimination “because … of sex,” the Court also noted that it was “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution.” It observed that the Religious Freedom Restoration Act of 1993 is “a kind of super statute” that “might supersede Title VII’s commands in appropriate cases.” Such cases have not yet reached the Supreme Court, but the Bostock opinion certainly invited them. The Supreme Court’s highly anticipated decision in Fulton v. City of Philadelphia also addressed these issues. The case presented the question of whether the City of Philadelphia could, consistent with the First Amendment’s protections for religion and speech, refuse to renew its contract with Catholic Social Services to provide foster care placements because the organization refuses, on religious grounds, to place children with gay couples. Although providing foster services is distinct from selling cakes, it is a service that is open to the public—indeed a service that the City contracted to provide the public. Fulton squarely presented the questions of whether Smith should be overturned and whether antidiscrimination rules are unconstitutional if applied to religious dissenters. To the surprise of many, the Supreme Court jumped the queue to make new law on religious exemptions before it decided Fulton, via what University of Chicago Law School professor William Baude has called its “shadow docket,” decisions it makes by summary order without briefing or argument. By a 5-4 vote in Tandon v. Newsom, the Court earlier this year issued an emergency injunction blocking California’s COVID-19-related restrictions on in-home gatherings as violating the free exercise clause, in what one scholar described as “the most important free exercise decision since 1990.” The majority reasoned that, because California allowed some secular businesses to bring together more than three families at a time––say, at a grocery store––a three-family limit on in-home gatherings for any purpose, including religious ones, was unconstitutional. The Court adopted what some have called a “most favored nation” view of the free exercise clause, under which otherwise neutral laws are constitutionally suspect if they create any exceptions for “comparable” secular activities. Tandon’s approach, it would turn out, foreshadowed Fulton’s. The Court in Fulton ostensibly declined to overturn Smith. Nor did it extend a general constitutional right to discriminate against LGBTQ+ people on religious grounds, as Catholic Social Services had sought and as court watchers believed was the near certain outcome. That is a significant win for LGBTQ+ rights advocates. Nonetheless, the Court ruled 9-0 in favor of Catholic Social Services, with the majority ruling on seemingly narrow, fact-bound grounds, arguably similar to its decision in Masterpiece Cakeshop. Why? Expanding on the logic of Tandon, the Court reasoned that the Philadelphia’s foster care contracts included a “system of individual exemptions” available “at the ‘sole discretion of the Commissioner’” that “invites the government to consider the particular reasons” for an agency’s noncompliance with the rule. The City’s antidiscrimination policies, therefore, did not constitute “generally applicable law.” Accordingly, strict scrutiny, rather than Smith’s rational basis review, applied, and the City failed to justify sufficiently its refusal to grant Catholic Social Services an accommodation not to serve LGBTQ+ couples. Several points are worth noting here. As University of Pennsylvania professor Cary Coglianese and Penn State Law professor Daniel Walters compellingly argue, “provisions explicitly authorizing exceptions to otherwise seemingly general rules” are in fact “rife throughout the law.” As a result, as they contend, in Fulton “the Supreme Court would seem to have opened the barn door for anyone with religious objections to escape from their duty to obey vast swaths of the law.” Although seemingly narrow, Fulton (along with Tandon) may render Smith largely inapplicable—likely with more far-reaching consequences than LGBTQ+ rights alone. As University of Virginia School of Law professor Douglas Laycock has observed, “if a law with even a few secular exceptions isn’t neutral and generally applicable, then not many laws are.” Indeed, if governmental discretion to enforce a law or any under-inclusiveness constitutes an exception, the domain of Smith becomes vanishingly small. At the same time, Fulton’s negotiated 15-page majority opinion and nearly 100 pages of concurrences by the Court’s conservatives suggest far more. At least three important implications follow from this collection of opinions. The first and most important implication may be what all of the opinions declined to address: the speech claim made by Catholic Social Services. By deciding the case on religious grounds, the Court, as in Masterpiece, avoided the broadest rule it could have adopted, namely that individuals have a right to break laws if they believe their breaking––or following––that law expresses something. Such a holding would deal a fatal blow to regulation at all levels, serving to “render self-government impossible.” But in Fulton, not a single Justice gave the speech argument any air time. Will this Court more broadly shift its focus from speech to religion jurisprudence? Fulton suggests it might. Second, it is clear there already exist five votes on the Court to expressly overrule Smith—Justices Alito, Barrett, Gorsuch, Kavanaugh, and Thomas—but the justices do not (yet) agree on what should replace it. Of note, the Court has still before it the possibility to hear appeals in both Arlene’s Flowers v. Washington and Ricks v. Idaho Contractors Board, either of which could provide swift vehicles to overrule Smith. Of the separate opinions in Fulton, Justice Barrett’s concurrence, joined in full by Justice Kavanaugh and in part by Justice Breyer, is no doubt the most important. It disputes the “prevailing assumption” that, if Smith were overruled, strict scrutiny would categorically apply to all neutral and generally applicable laws that burden religion, in favor of a “more nuanced” approach informed by other First Amendment doctrines. What might that mean? Perhaps a more context-dependent approach, akin to what free speech jurisprudence has long required. Speech jurisprudence has long used different rules and levels of scrutiny depending on the context of expression. Consider, for example, ordinary contracts. Although written in words, contract law generally falls outside of the domain of the Speech Clause, as does the speech of public school teachers dolling out bad grades or of doctors offering advice that constitutes malpractice. Or consider the rules that apply to the speech of a government lawyer, to flag burning, to nutrition labels, or to a law regulating noise levels—all of which receive not only context-bound levels of scrutiny but also legal tests that advance context-dependent constitutional values. Justice Barrett may attempt to bring religion law to the more complex, and indeed nuanced, world of speech jurisprudence—instead of moving speech law, perhaps, toward the blunt one-size-fits-all rule that the Kennedy Court had increasingly embraced. Barrett’s move, if accepted by the Court, might forge something of a middle path in the conflict between religion and secular laws, and might even benefit speech law in the process. Third, and finally, a majority of the Court—Chief Justice Roberts and Justices Barrett and Kavanaugh, along with the Court’s liberals, Breyer, Kagan, and Sotomayor—nonetheless appear to agree that the heartland of public accommodations laws are neutral, generally applicable, and constitutional. How does that square with their holding in Fulton? Considering the Philadelphia ordinance, it appears that the majority reasoned de novo—if perhaps in the shadow of constitutional avoidance—that foster services are not covered by Philadelphia’s public accommodations law. Foster care services, the majority reasoned, are not “available to the public” in the sense that the services of ordinary public accommodations, such as restaurants, are publicly available. Foster services, the Court stressed, involve “a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.” That move is important, insofar as it suggests that the Court may in fact uphold against a religion challenge a public accommodations law that does not contain exceptions in contexts such as hotels, restaurants, or transportation. Of course, court watchers will have to wait and see how that question looks to Justices Roberts, Kavanaugh, and Barrett once a concrete case is before them. If a majority does adhere to the longstanding, general position that public accommodations laws are constitutional, at least in some contexts, what services other than foster care might it exempt from that rule, if any? And if the general position does not hold in the future, will the Court require religious exemptions from public accommodations laws for anyone who would like to refuse to serve or employ LGBTQ+ people on religious grounds in the heartland of economic life? It would seem that the answer will depend in significant part on what Chief Justice Roberts and Justices Barrett and Kavanaugh view as “open to the public.” Are businesses that make custom wedding flowers or cakes, or dresses or table settings for that matter, open to the public? At this point, I remain relatively optimistic as to the core of public accommodations, if perhaps not as to so-called “personalized” wedding services. The statutory interpretation path taken by the Court in Fulton might allow the Court to avoid some of the knottiest questions and implications raised by the possibility of a flat exemption for any religious entity that provides public accommodations—so-called faithful public accommodations. This possibility constituted a central focus of oral argument in Fulton. Specifically, if a faithful public accommodation possessed a right to refuse service to LGBTQ+ people, could another such faithful entity then assert a right not to serve people based on their race, sex, religion, or disability? The federal government’s lawyer attempted to dodge that thorny question, stating that race discrimination might be different, but without explaining why. Indeed, it is hard to see how a constitutional rule granting a right to refuse service to LGBTQ+ people on religious grounds would not create a general right for religious entities to refuse service on the basis of race, disability, family status, religion, or other protected status, especially when an antidiscrimination law treats those categories identically. By tinkering with the domain of what is truly open or available to the public, the Court may be able to avoid an outcome in which all businesses are able to choose their customers and employees. That would be a happy result for LGBTQ+ advocates. But the Court is nonetheless already on its way to creating enclaves of exclusion and increasing the balkanization of the nation’s social and economic life. “Straight Couples Only” signs can now be posted with full constitutional protection—at least in some contexts. How far will the newly configured Supreme Court go in its remaking of religion law? And how will it reshape the opportunities of LGBTQ+ people and the openness of institutions that “constitute ordinary civic life in a free society” for all of us? We will have to wait and see

“LGBTQ+ Need Not Apply”

In a surge of recent court cases, businesses open to the public—in industries ranging from photography to florists, and wedding services to foster care placement—have invoked constitutional rights to refuse to serve LGBTQ+ people. The most prominent case to date was Masterpiece Cakeshop v. Colorado Civil Rights Commission, a 2018 case that involved a bakery asserting the right to refuse to sell a wedding cake to a gay couple. Today, court cases in which businesses claim a right to deny employment to LGBTQ+ people in the face of antidiscrimination regulations are similarly accumulating following the Supreme Court’s ruling last year in Bostock v. Clayton County, Georgia. The Court in Bostock held that Title VII of the Civil Rights Act of 1968—the federal employment nondiscrimination law—forbids discrimination against employees for being gay or transgender under the Act’s prohibition on discrimination “because of … sex.” Although in some sense these cases are a new and important development, they also form part of a larger arc of entities claiming that they have the right to refuse service or employment to certain groups—such as Black people, immigrants, or women—that reaches back at least a hundred years. Over many decades, the Supreme Court considered and rejected the arguments of employers and public accommodations, such as restaurants and hotels, that claimed constitutional exemptions from antidiscrimination laws. After the passage of the Civil Rights Act of 1968, which prohibited discrimination in both employment and public accommodations, the Supreme Court rejected the argument of an Atlanta motel that the Fifth Amendment gave it the right to refuse service to Black customers. The Court similarly rejected the contention of the prominent law firm King & Spalding that the First Amendment protected its freedom of association right to make only men, not women, partners. The Supreme Court described as “patently frivolous” a barbeque restaurant’s argument that the Civil Rights Act of 1968 was invalid because the requirement to serve Black patrons assertedly “‘contravenes the will of God’ and constitutes an interference with the ‘free exercise of the Defendant’s religion.’” And in two cases—one involving a federal law that required private schools to desegregate, and another involving the tax-exempt status of Bob Jones University, which prohibited interracial dating and marriage as part of its religious mission—the Court held that private schools do not have constitutional rights to adopt racially discriminatory policies or admissions practices. These decisions made two related moves. First, they restored the common law duty of businesses open to the public to serve the public on a nondiscriminatory basis. This duty prevailed before the Civil War but was abrogated after Reconstruction by racially discriminatory southern laws. Second, these decisions reflected the view that schools and employers are institutions that are open to the public and critical for public participation in what it later described as the basic “transactions and endeavors that constitute ordinary civic life in a free society.” Masterpiece again raised this question of whether the Constitution protects a right to refuse service or employment to a class of people on religious or moral grounds. Importantly, in addition to a free exercise of religion claim, the cakeshop made a free speech claim. Masterpiece argued that it could not be required to sell a cake to a gay couple because doing so would compel it to express a message of support for gay marriage. Court watchers speculated that the Supreme Court might change course in Masterpiece from its consistent rejection of such claims because, for over three decades, the Court had adopted an increasingly robust and libertarian view of the freedom of speech, particularly in economic life. The Court had expanded the sorts of activities that are protected as “speech” or expression and are subject to heightened judicial review. By contrast, free exercise jurisprudence had remained relatively stable. For example, the Court’s 1990 decision Employment Division v. Smith had remained good law. Smith held that generally applicable laws that are neutral toward religion—that is, do not target or disfavor religion—receive the lowest level of judicial scrutiny, rational basis review. Many observers speculated at the time of Masterpiece that Justice Kennedy was looking to carve out a free speech right not to sell wedding cakes to gay couples, to balance the scales after granting major wins to the gay community. The bakery’s argument, however, turned out to be too expansive for the Court to accept. Why? Humans are expressive animals and almost anything they do can be understood as expressive. For this reason, recognizing an expressive right not to serve a customer would not only threaten most civil rights laws but potentially government regulation more broadly. If refusing to abide by a nondiscrimination law is a constitutional right, why not refusing to abide by any other type of law because of what adhering to it might express? The Court did not take the course urged by the bakery. Instead, it emphasized the “general rule” that religious “objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” In doing so, the Court affirmed established constitutional principles. The bakery won the battle but lost the war. The law around religious exemptions, however, is swiftly changing. The Supreme Court is now stocked with Justices for whom religious liberty is a central or perhaps even primary concern. The new majority has already begun dramatically remaking religion law in ways that may provide religious exemptions to refuse service or employment to the LGBTQ+ community. Although the Court’s recent decision in Bostock held that Title VII protects LGBTQ+ people against discrimination as part of its prohibition against discrimination “because … of sex,” the Court also noted that it was “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution.” It observed that the Religious Freedom Restoration Act of 1993 is “a kind of super statute” that “might supersede Title VII’s commands in appropriate cases.” Such cases have not yet reached the Supreme Court, but the Bostock opinion certainly invited them. The Supreme Court’s highly anticipated decision in Fulton v. City of Philadelphia also addressed these issues. The case presented the question of whether the City of Philadelphia could, consistent with the First Amendment’s protections for religion and speech, refuse to renew its contract with Catholic Social Services to provide foster care placements because the organization refuses, on religious grounds, to place children with gay couples. Although providing foster services is distinct from selling cakes, it is a service that is open to the public—indeed a service that the City contracted to provide the public. Fulton squarely presented the questions of whether Smith should be overturned and whether antidiscrimination rules are unconstitutional if applied to religious dissenters. To the surprise of many, the Supreme Court jumped the queue to make new law on religious exemptions before it decided Fulton, via what University of Chicago Law School professor William Baude has called its “shadow docket,” decisions it makes by summary order without briefing or argument. By a 5-4 vote in Tandon v. Newsom, the Court earlier this year issued an emergency injunction blocking California’s COVID-19-related restrictions on in-home gatherings as violating the free exercise clause, in what one scholar described as “the most important free exercise decision since 1990.” The majority reasoned that, because California allowed some secular businesses to bring together more than three families at a time––say, at a grocery store––a three-family limit on in-home gatherings for any purpose, including religious ones, was unconstitutional. The Court adopted what some have called a “most favored nation” view of the free exercise clause, under which otherwise neutral laws are constitutionally suspect if they create any exceptions for “comparable” secular activities. Tandon’s approach, it would turn out, foreshadowed Fulton’s. The Court in Fulton ostensibly declined to overturn Smith. Nor did it extend a general constitutional right to discriminate against LGBTQ+ people on religious grounds, as Catholic Social Services had sought and as court watchers believed was the near certain outcome. That is a significant win for LGBTQ+ rights advocates. Nonetheless, the Court ruled 9-0 in favor of Catholic Social Services, with the majority ruling on seemingly narrow, fact-bound grounds, arguably similar to its decision in Masterpiece Cakeshop. Why? Expanding on the logic of Tandon, the Court reasoned that the Philadelphia’s foster care contracts included a “system of individual exemptions” available “at the ‘sole discretion of the Commissioner’” that “invites the government to consider the particular reasons” for an agency’s noncompliance with the rule. The City’s antidiscrimination policies, therefore, did not constitute “generally applicable law.” Accordingly, strict scrutiny, rather than Smith’s rational basis review, applied, and the City failed to justify sufficiently its refusal to grant Catholic Social Services an accommodation not to serve LGBTQ+ couples. Several points are worth noting here. As University of Pennsylvania professor Cary Coglianese and Penn State Law professor Daniel Walters compellingly argue, “provisions explicitly authorizing exceptions to otherwise seemingly general rules” are in fact “rife throughout the law.” As a result, as they contend, in Fulton “the Supreme Court would seem to have opened the barn door for anyone with religious objections to escape from their duty to obey vast swaths of the law.” Although seemingly narrow, Fulton (along with Tandon) may render Smith largely inapplicable—likely with more far-reaching consequences than LGBTQ+ rights alone. As University of Virginia School of Law professor Douglas Laycock has observed, “if a law with even a few secular exceptions isn’t neutral and generally applicable, then not many laws are.” Indeed, if governmental discretion to enforce a law or any under-inclusiveness constitutes an exception, the domain of Smith becomes vanishingly small. At the same time, Fulton’s negotiated 15-page majority opinion and nearly 100 pages of concurrences by the Court’s conservatives suggest far more. At least three important implications follow from this collection of opinions. The first and most important implication may be what all of the opinions declined to address: the speech claim made by Catholic Social Services. By deciding the case on religious grounds, the Court, as in Masterpiece, avoided the broadest rule it could have adopted, namely that individuals have a right to break laws if they believe their breaking––or following––that law expresses something. Such a holding would deal a fatal blow to regulation at all levels, serving to “render self-government impossible.” But in Fulton, not a single Justice gave the speech argument any air time. Will this Court more broadly shift its focus from speech to religion jurisprudence? Fulton suggests it might. Second, it is clear there already exist five votes on the Court to expressly overrule Smith—Justices Alito, Barrett, Gorsuch, Kavanaugh, and Thomas—but the justices do not (yet) agree on what should replace it. Of note, the Court has still before it the possibility to hear appeals in both Arlene’s Flowers v. Washington and Ricks v. Idaho Contractors Board, either of which could provide swift vehicles to overrule Smith. Of the separate opinions in Fulton, Justice Barrett’s concurrence, joined in full by Justice Kavanaugh and in part by Justice Breyer, is no doubt the most important. It disputes the “prevailing assumption” that, if Smith were overruled, strict scrutiny would categorically apply to all neutral and generally applicable laws that burden religion, in favor of a “more nuanced” approach informed by other First Amendment doctrines. What might that mean? Perhaps a more context-dependent approach, akin to what free speech jurisprudence has long required. Speech jurisprudence has long used different rules and levels of scrutiny depending on the context of expression. Consider, for example, ordinary contracts. Although written in words, contract law generally falls outside of the domain of the Speech Clause, as does the speech of public school teachers dolling out bad grades or of doctors offering advice that constitutes malpractice. Or consider the rules that apply to the speech of a government lawyer, to flag burning, to nutrition labels, or to a law regulating noise levels—all of which receive not only context-bound levels of scrutiny but also legal tests that advance context-dependent constitutional values. Justice Barrett may attempt to bring religion law to the more complex, and indeed nuanced, world of speech jurisprudence—instead of moving speech law, perhaps, toward the blunt one-size-fits-all rule that the Kennedy Court had increasingly embraced. Barrett’s move, if accepted by the Court, might forge something of a middle path in the conflict between religion and secular laws, and might even benefit speech law in the process. Third, and finally, a majority of the Court—Chief Justice Roberts and Justices Barrett and Kavanaugh, along with the Court’s liberals, Breyer, Kagan, and Sotomayor—nonetheless appear to agree that the heartland of public accommodations laws are neutral, generally applicable, and constitutional. How does that square with their holding in Fulton? Considering the Philadelphia ordinance, it appears that the majority reasoned de novo—if perhaps in the shadow of constitutional avoidance—that foster services are not covered by Philadelphia’s public accommodations law. Foster care services, the majority reasoned, are not “available to the public” in the sense that the services of ordinary public accommodations, such as restaurants, are publicly available. Foster services, the Court stressed, involve “a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.” That move is important, insofar as it suggests that the Court may in fact uphold against a religion challenge a public accommodations law that does not contain exceptions in contexts such as hotels, restaurants, or transportation. Of course, court watchers will have to wait and see how that question looks to Justices Roberts, Kavanaugh, and Barrett once a concrete case is before them. If a majority does adhere to the longstanding, general position that public accommodations laws are constitutional, at least in some contexts, what services other than foster care might it exempt from that rule, if any? And if the general position does not hold in the future, will the Court require religious exemptions from public accommodations laws for anyone who would like to refuse to serve or employ LGBTQ+ people on religious grounds in the heartland of economic life? It would seem that the answer will depend in significant part on what Chief Justice Roberts and Justices Barrett and Kavanaugh view as “open to the public.” Are businesses that make custom wedding flowers or cakes, or dresses or table settings for that matter, open to the public? At this point, I remain relatively optimistic as to the core of public accommodations, if perhaps not as to so-called “personalized” wedding services. The statutory interpretation path taken by the Court in Fulton might allow the Court to avoid some of the knottiest questions and implications raised by the possibility of a flat exemption for any religious entity that provides public accommodations—so-called faithful public accommodations. This possibility constituted a central focus of oral argument in Fulton. Specifically, if a faithful public accommodation possessed a right to refuse service to LGBTQ+ people, could another such faithful entity then assert a right not to serve people based on their race, sex, religion, or disability? The federal government’s lawyer attempted to dodge that thorny question, stating that race discrimination might be different, but without explaining why. Indeed, it is hard to see how a constitutional rule granting a right to refuse service to LGBTQ+ people on religious grounds would not create a general right for religious entities to refuse service on the basis of race, disability, family status, religion, or other protected status, especially when an antidiscrimination law treats those categories identically. By tinkering with the domain of what is truly open or available to the public, the Court may be able to avoid an outcome in which all businesses are able to choose their customers and employees. That would be a happy result for LGBTQ+ advocates. But the Court is nonetheless already on its way to creating enclaves of exclusion and increasing the balkanization of the nation’s social and economic life. “Straight Couples Only” signs can now be posted with full constitutional protection—at least in some contexts. How far will the newly configured Supreme Court go in its remaking of religion law? And how will it reshape the opportunities of LGBTQ+ people and the openness of institutions that “constitute ordinary civic life in a free society” for all of us? We will have to wait and see

The Power to Shape the “Political”

The role of corporations in American life has become the focus of intense public and scholarly debate. How do corporations influence political outcomes? What norms or laws should structure corporate political participation? And who should decide what political interventions corporations make? These are vitally important questions that bear on how to deal with the pressing challenges of social media, money in politics, polarization, autocratic threats, and the influence of consolidated capital on governmental and democratic decision-making. Most conversations about the role of corporations in politics, however, assume a definition of “political.” This key term is commonly taken for granted or simply ignored—often standing in for a vaguely defined concept of politicians, regulatory agencies, lobbyists, and the money and information flows between them. The idea of the “political” is under significant dispute, and its meanings have shifted dramatically, particularly over the last four decades. This essay lays out an abbreviated genealogy of the “political” and the role of corporations in its development. Corporations have played an outsized role in shaping the boundaries and content of what is understood to be “political” both within multiple areas of law and in American culture more broadly, largely in ways that have limited market-regulating or redistributional governmental action. This essay also explains that competing definitions of the “political” have led to fundamental contradictions in constitutional law. The term serves as a, if not the, dispositive concept in a range of doctrines. In takings law, for example, the “political” designates the sphere of appropriate governmental action. But the major questions doctrine operates on a near opposite definition: the “political” is the space of impermissible regulatory action. And, surprisingly, First Amendment law employs both concepts. Recent political and ideological reconfigurations are putting new and different pressures on the “political.” The influence of the business community and libertarianism have begun to wane as polarization has become more intense. The growing clash between identitarian populism—by which I mean the view that law should protect and advance a single cultural identity to the exclusion of other identities, other values, or pluralism—and previously-dominant libertarianism within the Republican coalition is likewise transforming cultural ideas of the political and its normative valance. The essay concludes by asking what that transformation may mean for the role of corporations in politics—and in shaping the boundaries of the “political” itself

Anti-Woke Capitalism, the First Amendment, and the Decline of Libertarianism

Firms across the globe, including financial institutions like banks, asset managers, and pension fund managers, are adopting strategies to account for the risks they face from climate change. These strategies include declining to invest in certain emissions-intensive projects or advising firms in their portfolios to report or reduce climate impacts and risks. These forms of private environmental governance can be characterized as one aspect of the “E” within a broader management strategy of “ESG,” or the management of environmental, social, and governance factors. Regulators in the United States and other countries are beginning to mandate that firms take some of these factors into account. With the rise of firms’ consideration of ESG factors has come backlash, often under the umbrella of anti-wokeness. This backlash has come to a head in the form of state laws prohibiting state agencies and municipalities, including state pension funds, from doing business with financial institutions that are alleged to be “boycotting” the fossil fuel industry or that are broadly taking ESG factors into account. These laws are part of a larger trend of targeting firms’ decisions to address social and governance issues like declining to invest in gun manufacturing or taking positions on other social issues, including racial justice, abortion, and LGBTQ+ rights. The last three decades of First Amendment law have been strongly influenced by laissez-faire constitutionalism, stemming in significant part from the adoption of libertarian ideas by the conservative legal movement. New so-called “anti-woke” capitalism laws represent a fundamental shift in the conservative legal movement away from libertarianism, First Amendment Lochnerism, and deregulatory constitutionalism and toward identitarianism and efforts to directly influence the substance of firm decision-making. This Article traces this important turn away from laissez-faire law and policy, which has significant constitutional implications, particularly for the First Amendment. These anti-woke laws, and the identitarian politics they reflect, may foreshadow a similar turn in First Amendment law. At the same time, these laws raise important First Amendment issues. These include the difficult questions of when a governmental motive is sufficiently untoward to trigger heightened scrutiny or render a law unconstitutional, and when a social practice should be considered a medium of expression in public discourse for constitutional purposes. These issues have long vexed courts and scholars and are also crucial to the disposition of many of today’s most contested First Amendment questions. This Article offers the first in-depth constitutional analysis of these so-called “anti-woke capitalism” laws. Rather than declaring that some of these laws—which vary across doctrinally significant axes—are constitutional or unconstitutional, this Article focuses on articulating the questions and constitutional values that should guide analyses of these laws and others like them that regulate social practices at the intersection of political and economic life. By focusing on the First Amendment’s underlying objectives—to protect decisional and participatory liberty in both political life and the marketplace—this Article uses these laws as a lens to clarify and rethink existing doctrinal categories in order to forward a conception of the First Amendment that advances democracy in a thoroughgoing way

Have Your Cake and Eat It Too? A Masterpiece Cakeshop Panel Discussion

The panelists discussed whether Jack Phillips, owner of the Masterpiece Cakeshop in Lakewood, Colorado, may decline requests to custom-design wedding cakes and other custom-designed baked goods whenever the message he would be asked to convey is in conflict with his religious beliefs. In their petition to the Supreme Court, Masterpiece Cakeshop and Phillips argue that Phillips is free to decline such requests because the custom-design elements of each of his wedding cakes makes his artwork an integral part of each couple’s celebration. In his view, if he cannot be compelled to participate in the celebration itself, he should not be compelled to provide desired artwork either. A summary of the event is available here