Professor Steve Shiffrin is an enormously thoughtful scholar of the First Amendment. He is a constant and welcome reminder to me that alignment in political views is in the end rather minor indeed in the greater scheme of scholarly affinity and insight. My own work has been very much influenced by Steve’s even as his politics and my own differ in various ways.
Steve has a smart post on the religious accommodation controversy. In it, he picks up a theme that has characterized some of his work on the Speech Clause–that is, its arguably indefensible modern scope. He writes:
Why do liberals value freedom of speech over freedom of religion? Why should the state tolerate hate speech on the basis of sexual orientation (not to mention race)? If permitting some religious individuals the ability to discriminate against gays and lesbians in the purchasing of products and services is a stigmatizing denial of equality, how much more stigmatizing is virulent hate speech? In addition, however difficult it might be for many liberals to muster any empathy for the evangelical Christian who feels a religious obligation not to serve gays or lesbians, the explicitly homophobic hate monger is surely worthy of substantially less respect which is to say – no respect.
Some liberals will say that the hate speech example involves speech, and discrimination is conduct. But speech is conduct, as is defamation, most forms of fraud, and perjury. Other liberals will say that in the area of free speech, we do not take the value of speech into account. This is true much of the time, but there are exceptions (obscenity, fighting words, commercial speech, near obscene speech, and private speech) and there should be more of them (depictions of animal cruelty targeted to sadists or masochists, gruesomely violent video games). Why shouldn’t this be one of the exceptions? Note these are the same liberals who believe that equality on the basis of sexual orientation should be a Constitutional right. In other words, they believe that homophobia like racism should be renounced in our Constitution. Of course, everyone should have a right to question the wisdom of our constitutional rights, even the equal protection clause, but that should not implicate a right to stigmatize and libel citizens on the basis of sexual orientation (or race).
It’s an interesting set of questions. For more on the reasons for the decrease in broad American social investment in religious freedom by comparison with free speech, see Part IV of this paper (and in particular my friendly wager with Professor John Inazu about whether it is, or is not, only a matter of time before the Speech Clause suffers a similar fate).