The Equal Right to Exclude: Religious Speech and the Road to 303 Creative LLC v. Elenis
Author: Redburn, Kate
Publisher: Nashwa
Publication Date: Jan 01, 2024
DOI: 15779/Z38TX35771
Country: United States
Language: English
Abstract
This Article explains how speech became the constitutional
vehicle for the right to discriminate on religious grounds in places of
public accommodation. It argues that cause lawyers for the New
Christian Right cobbled together a right to exclude from a surprising
doctrinal source: the egalitarian tendencies within the First
Amendment. Using extensive original archival research, case
materials, and little-known accounts of key figures, I reconstruct the
New Christian Right’s legal strategy to obtain speech coverage for
service denial. By strategically co-opting the progressive free speech
legacy, innovative lawyers in the religious wing of the conservative
legal movement convinced liberal jurists that they shared an approach
to constitutional interpretation. The result was an argument that won
the day in 303 Creative v. Elenis—that the government discriminates
on the basis of speech content when it enforces public accommodations
law in the sale of expressive products.