Daily Archives: June 23, 2021

Anti-racism is now routinely framed as a threat to freedom of speech, but the tactic is not new. In 1965, William F. Buckley Jr. argued in a syndicated column titled, Are You a Racist? that the word racism was being used indiscriminately. This risked preventing a focus on real racism, such as that perpetrated by Hitler, he wrote, and also led to innocent people being denounced merely for expressing controversial opinions.

Sound familiar? Buckleys warning about the censoriousness of anti-racist politics was issued the same year as the Selma-to-Montgomery civil rights march. More than 50 years later, the same tactic is being deployed in response to the Black Lives Matter movement. Across different contexts, the democratic importance of free speech is being misappropriated to advance reactionary politics.

The Conservative Party government in the United Kingdom, for example, has invested significant political energy in framing BLM-related protests as threats to freedom of expression. This has involved a campaign against censorship on university campuses, despite a lack of evidence supporting these claims. It recently culminated in the publication of a report on racism in Britain that blames wrong-headed youthful idealism for once again making everything about racism.

Buckleys ideological maneuvering and U.K. Prime Minister Boris Johnsons culture war share an approach. Rather than denying the existence of racism, both insist on an artificially restricted definition that accepts nothing short of evidence of direct, intentional hostility. This closes off any discussion of the structural and institutional racism in society that the wave of BLM-inspired movements seek to confront.

It is also designed to put people subject to racism on the defensive. Unless they can definitively prove intentional racism as the cause of a behavior, they are said to be acting undemocratically and shutting down open debate by indiscriminately accusing others of racism.

Idahos new law banning the teaching of critical race theory in its public schools is an example of gaslighting politics in action. In a bid to defend dignity and non-discrimination, it criminalizes such teaching, arguing that it promotes division. No definition of critical race theory is provided.

If the concept is left fluid, critical race theory can be made to stand in for any attempt to account for the legacy and persistence of racist structures. At the same time, if it is presented as something solid, it can be viewed as an indoctrinating ideology and justify the censoring of, for instance, education and educators. This shape-shifting is exactly what former Vice President Mike Pence was playing with when he tweeted in response to the vote: We will reject Critical Race Theory in our schools and public institutions, and we will CANCEL Cancel Culture wherever it arises!

On the surface, Pence may seem to have little in common with French President Emmanuel Macron, whose liberal government has taken this assault even further. In a manufactured moral panic, the French government is accusing anti-racist groups of importing North American theories about systemic racism that threaten the universalism of the French republic. Consequently, these ideas are framed not as contributions to open debate, but as a menace to freedom of speech as an essential value underpinning the republic.

Brazen political moves like this must be opposed not just by anti-racists, but by anyone concerned with the democratic value of free speech. The first line of defense would be to expose the weaponization of freedom of speech as an opportunistic political tactic. Opportunistic, and dangerous, since it allows politicians to pay lip service to opposing racism while framing anti-racist movements and ideas as a democratic threat.

It is also crucial to demonstrate how free speech is being used for authoritarian ends. A vague rhetoric of free speech sounds perfectly democratic, but it is drawn on to suppress specific kinds of political expression. In milking a supposed free speech crisis, elected politicians in London, Paris and Idaho enacted measures that flagrantly restrict forms of democratic speech, in these cases the right to protest and academic freedom.

The media conditions that make these tactics viable in the public sphere are also part of the problem. That such intense disputes on the limits of speech take place in a context of apparently limitless speech should give us pause for thought. How can so many people claim to be silenced and loudly clamor for scarce attention at the same time?

As the writer Toni Morrison said in 1975, the serious function of racism is distraction. In the contemporary media environment, this distraction consists of staging heated and divisive debates where those combating racism are held up as irrational and excessive, unwilling to accept a reasonable definition of what racism really is, and limiting freedom of speech as a consequence.

Public debates are meant to be a contest of ideas. In a digital media swirl, debates are shaped by the incessant circulation of media content, and not everything that is set up as an idea should be treated as one. Contemporary debates are often spectacles made up from recycled talking points and recurring, polarizing controversies jostling for attention.

The internet-savvy far right, for example, takes advantage of the limitless opportunities of social media communication to reanimate discredited racist ideas about human difference and to present them as nothing more than innocent propositions for debate. And guess what? If you dont play along, and treat the same set-piece debates about the humanity of their targets as a good faith dialogue, you are the democratic problem.

The efficiency with which far-right movements have exploited social media has driven extensive public discussion of the failure of the platforms moderation practices and speculation on future forms of regulation. The bigger problem is this: Social media corporations provide us with important infrastructure for public debate in democracies, but we have no democratic relationship to these private, largely unaccountable entities.

The task then is to build something better, and we can start by recognizing that for speech to be meaningfully free, it needs to be heard and engaged with outside of the incessant noise of digital debates. This will require building more ways to communicate democratically, the political will to strengthen public media and the determination of everyday people to create communal spaces where sustained engagements can take place.

Gavan Titley is an associate professor in media studies at Maynooth University in Ireland. His most recent book is Is Free Speech Racist?)

2021 Los Angeles Times. Visit at latimes.com. Distributed by Tribune Content Agency, LLC.

View original post here:
Commentary: How 'freedom of speech' is weaponized to fight anti-racism - Johnson City Press (subscription)

Black, Asian and ethnic minority academics and university staff increasingly encounter a cancel culture when discussing race as the usual free speech advocates stay silent, Sian Norris reports

The decision by a Cambridge University college to disband a group exploring Churchill and imperialism is having a chilling effect on anybody who departs from the official line on the British Empire and race, Professor Priyamvada Gopal has told Byline Times.

Churchill Colleges Working Group on Churchill, Empire and Race was set up to lead an ongoing critical dialogue about Churchills own legacy in global history. It met with significant criticism from the right-wing press including the Daily Mail, which accused the group of being left-wing academics intent on smearing the World War Two Prime Minister. The Sun reported its disbanding by declaring race group dumped under the banner of Wokepedia: a compendium of PC poppycock.

It was also criticised by the Policy Exchange think-tank which said that the disbanding was a wise decision and shows that the defeat [of small-c conservatives] at the hands of activists is not inevitable.

However, Prof Gopal, a teaching fellow at Churchill College, told Byline Times that this is a very public gesture of the college pandering to the tabloids, to Policy Exchange, to [Education Secretary] Gavin Williamson and wanting to be applauded for it.

A statement from the college master, Professor Dame Athene Donald, said that the group disbanded itself following a comment from Prof Gopal that it might as well dissolve after the college appeared rattled by the press reaction to an event it held.

The statement also said that the Working Group was intended to have a finite lifetime. Prof Gopal has said that it is untrue that the group disbanded itself and its members had not been told that it had been constituted for a limited period.

She is now concerned that the hostility faced by the group, and the decision by the college to disband it, has led to students feeling that Churchill College is not a safe space for students of colour.

The academic also expressed concern that the decision had a repressive effect on academic freedom, telling Byline Times that people are no longer comfortable, not only talking about Churchill, but even being on a panel where Churchill may be brought up.

The decision to disband the Working Group has prompted questions about who the real targets of cancel culture are a popular accusation thrown at the left from both the Government and the right-wing press, which argue that predominantly white men are being cancelled by woke universities.

However, when it comes to academics and students of colour being effectively cancelled, tabloids celebrate their axing and organisations such as Toby Youngs Free Speech Union are oddly silent.

Young, the Union and various members including the Spectators Douglas Murray and GB News Inaya Folarin Iman all found time to tweet about Andrew Neils new television channel in the days that followed the Working Groups cancellation but failed to condemn this cancelling of an academic debate on social media or on the Unions website.

At Cambridge, we had a group of people claiming they were all about free speech and forced the university to effectively outlaw no-platforming, Prof Gopal said. And these people have not had a word to say about what has happened at Churchill.

Professor Gus John, an internationally-renowned academic, told Byline Times that he believes the higher education sector is increasingly afraid of its shadow when it comes to discussing issues to do with race, racism and colonialism.

There is not a culture of open, free and democratic debate and discussion on racism in society as it affects black or global majority (BGM) staff and students, let alone as it helps to underpin structural and institutional arrangements and cultures in those institutions which BGM staff and students experience as racist, he said.

The right-wing press in the UK, US, and some Government ministers have also launched an attack on critical race theory an academic discipline designed to explore how racism shapes public policy.

It really is quite extraordinary that there has not been a hue and cry from university vice chancellors as a body about that disgraceful attack on critical race theory and on the Black Lives Matter movement, Prof John added. By its silence, the sector is complicit in the attack from media, Government and right/far-right actors, especially given the evident political lurch to the right by the Government.

There has been a growing trend of black, Asian or ethnic minority university staff being accused of racism themselves when discussing issues of race. This includes accusations of so-called anti-white racism, which, Prof Gopal says, ignore how racism is a structure, and when white supremacy is at the top of that structure, its about structural critique.

In the case of Aysha Khanom, reported earlier this year by Byline Times, it can involve losing a university position following allegations of racism on social media even when there is dispute as to whether the accusation of racism is valid or fair.

In February, Khanoms organisation The Race Trust posted a tweet asking Conservative activist Calvin Robinson: Does it not shame you that most people see you as a house n***o. Robinson had appeared on the BBCs The Big Questions where he said that this term had been directed at him in the past. The tweet was picked up by a variety of right-wing websites, as well as the Daily Mail. In response, Leeds Beckett University, where Khanom was affiliated as an advisor, publicly cut ties with her.

Prof John said he told the university that it was preposterous to call the tweet racist and challenged it to say why they defined it as such, which it did not do.

The Institute of Race Relations has argued that it is not a racial slur, although when used as part of an understanding of the history of black enslavement, it can certainly make people feel uncomfortable. Similarly, in an open letter, Professor Kehinde Andrews wrote that it is the height of anti-black racism to censor central concepts in black intellectual thought as racist or inappropriate and undermines the credibility of CRED and Leeds Beckett University.

In correspondence seen by Byline Times, Prof John expressed concern that the university had failed to determine how and why the term used was racist and its history as a racial slur. As a result, it leaves the impression that the decision to sever ties with Khanom was based on the reaction from social media, with PR rather than debate setting the agenda for the university.

As with the Churchill row, the activists and Government ministers who criticise cancel culture and claim to be fighting for freedom of speech have been strangely silent on Khanoms case.

The university is trying to dictate academic freedom, Khanom told Byline Times. We are being accused of racism more than white people.She is challenging Leeds Beckett Universitys decision on the grounds that it breached her right to freedom of expression, as well as its own statutory duties to ensure freedom of speech for academics, because of preconceptions about its views on race, colonialism, the civil rights movement and racial identity.

Leeds Beckett University told Byline Times that it is confident in the rigour of its discussions with Khanom and the integrity of the decision-making and stands by the decision to cut ties with her.

It added: We do not support the medias negative treatment of Ms Khanom. At no point was our decision-making influenced by comments made by the media or on social media except those made by Ms Khanom or the Race Trust.The university firmly believes in academic freedom and freedom of expression. This stance is central to the work of the Centre for Race, Education and Decoloniality too. We recognise the importanceof hearing and respecting different views and perspectives.But it is vital that disagreement is expressedwithoutpersonal attackas thisdamagesthe rigour of the debate.

The Government is pressing forward with plans to protect free speech and academic freedom, in places relying on evidence from a designated hate group. However, when it comes to the much-debated concept of cancel culture, questions must be asked about who is really being cancelled and whose voices are not being heard.

New to Byline Times? Find out about us

Our leading investigations include Brexit Bites, Empire & the Culture War, Russian Interference, Coronavirus, Cronyism and Far Right Radicalisation. We also introduce new voices of colour in Our Lives Matter.

To have an impact, our investigations need an audience.

But emails dont pay our journalists, and nor do billionaires or intrusive ads. Were funded by readers subscription fees:

View post:
Selective Free Speech: Academics Discussing Race Face the Real Cancel Culture Byline Times - Byline Times

By Ken PaulsonDirector, Free Speech CenterMiddle Tennessee State University

The 56 men who signed the Declaration of Independence knew what they were getting into. As we celebrate 245 years later with flags and fireworks on July 4, its easy to forget these patriots risked death to give a new nation life.

If youve never read the Declaration of Independence in its entirety, this is a good time to do that. More than two centuries later, its still a good read. These rebels, who would be accused of treason by Great Britain, wrote the document in a reasoned manner, attempting to convey to the world that their cause was a just one.

At its most basic, its a demand for a divorce, with one party explaining why this marriage cant be saved. Whats fascinating, though, is how the list of complaints about the king of England not only cited justification for the break-up, but also telegraphed the principles the new nation would insist upon in establishing its own governance.

The entire document was a bold statement, speaking truth to power. As it established its own future, this new nation would have to find a way to guarantee free speech, particularly in regard to criticizing government.

The Declaration of Independence lists more than two dozen examples of why the king was unfit to be the ruler of a free people. The new United States of America would need to create a check on those who abused their power. That would come from a free press.

Much of the Declaration is devoted to examples of the king ignoring the colonies needs and maintaining a stranglehold on new legislation to address those needs. Clearly, the United States would have to guarantee petition and assembly.

Memorably, the Declaration states that all men are endowed by their Creator with certain unalienable rights. This was an acknowledgement of a higher power without a specific reference to any religion. This new nation would go on to guarantee freedom of faith.

Freedom of speech, press, and religion. The rights of petition and assembly. Today, we see all five nestled together in the First Amendment to the U.S. Constitution. It took a war for independence and 17 years, but those aspirations became the cornerstone for a young and vibrant country.

Fast forward to the 21st century. A new survey of citizens around the globe by legal public-policy center Justitia has assessed how citizens in 33 countries feel about freedom of speech. It found that most citizens in most countries feel free speech is important and positive, but they waver when presented with scenarios in which free speech offends others or hampers society.

In order, Norway, Denmark, the U.S., and Sweden top the list: Citizens of these nations say they are steadfast in their support of free speech. At the bottom of the list: Tunisia, Kenya, Egypt, and Pakistan.

In a telling passage, Justitia quotes free-speech expert and Columbia University President Lee Bollinger as saying the U.S. is the most speech-protective of any nation on earth, now or throughout history. The report also notes that a 2015 Pew research study determined no nation in the world was more supportive of free speech and a free press than the U.S.

At our best and not without lapses we walk that talk.

In 1776, our founders published a Declaration of Independence, but also a declaration of intent. Those early Americans sought life, liberty and the pursuit of happiness by creating a nation founded on freedom. But those freedoms must never be taken for granted, and our collective vigilance is essential.

On the most American of holidays, lets be sure to celebrate the most American of freedoms.

Ken Paulson is director of the Free Speech Center at Middle Tennessee State University and former dean of the College of Media and Entertainment at MTSU. Paulson has spent much of his career as a journalist, educator and advocate for First Amendment values.

Follow this link:
Celebrating the most American of freedoms | Ken Paulson - Wisconsin Newspaper Association

A bill seeking to address financial barriers and access to higher education, along with speech on campuses, is now headed for House review after the Ohio Senate passed it nearly unanimously.

In a 31-2 vote, Senate Bill 135 cleared one chamber of the Ohio legislature, pressing forward new rules for student debt transparency and a pilot program for those who dropped out of school, but want a second chance.

The proposed legislation also requires not only higher education institutions, but K-12 facilities as well to adopt a policy on speech on campus and and establish a process to appeal allegations of free speech violations.

This bill is about protecting the free speech of all students and faculty to ensure that our campuses and school districts are not only beacons of free speech and individual expression, but that the focus is on critical thinking skills, to ensure that students can thoughtfully develop their own opinions and make their own decisions, bill sponsor state Sen. Jerry Cirino, R-Kirtland, said.

The measure hits the Senate floor one day after two bills were introduced in the House to control teaching in all tax-funded educational forums that would promote certain ideologies over others. One bill targeted K-12 education specifically, the other was more broad.

Cirino said SB 135 would provide $3 million over the next two years for scholarships that would allow 1,500 students who left higher education in the past five years to try again.

Under the measure, an initiative would also be put in place to allow community college students to transfer credits to state universities and requires partnerships between state universities and community colleges and technical colleges for dual enrollment and programming.

For those just beginning the process of secondary education, the bill targets high school guidance counselors in an effort to make sure students receive all their post-graduation options, including trade schools, community schools and four-year colleges.

That advice should also include the actual cost of a chosen education path, Cirino said of the bill.

The solution to student debt is not wholesale forgiveness, because that does not solve future problems, Cirino said. The solution to student debt is to make sure that students know early on in their career what their lower cost options are, for us to help make them available, and to make sure that they are better counseled on these options.

In the Senate floor vote, the bill received bipartisan support, with the only criticism stemming from the clauses on freedom of speech. Sen. Nickie Antonio, D-Lakewood, said she was encouraged by the rest of the language in the bill, but heard concerns on whether the free speech language actually encourages or quashes that.

We want people to have the freedom to express their ideas and do that in an environment thats safe and open, Antonio said before voting against the bill. Its what our democracy was founded on.

Antonio said she hopes the bill will evolve under House consideration.

The bill had the support of several community colleges and higher education advocates in previous committee hearings, despite the free speech language.

THE MORNING NEWSLETTER

Subscribe now.

HELP US GROW

Make a tax-deductible donation.

More:
Higher ed access, speech on campus bill moves on for House review - Ohio Capital Journal

In a ruling last week, the U.S. Supreme Court moved closer to allowing LGBTQ+ discrimination.

In a surge of recent court cases, businesses open to the publicin industries ranging from photography to florists, and wedding services to foster care placementhave 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 Courts ruling last year in Bostock v. Clayton County, Georgia. The Court in Bostock held that Title VII of the Civil Rights Act of 1968the federal employment nondiscrimination lawforbids discrimination against employees for being gay or transgender under the Acts 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 groupssuch as Black people, immigrants, or womenthat 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 restaurants 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 Defendants religion. And in two casesone 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 missionthe 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 Courts 1990 decision Employment Division v. Smith had remained good law. Smith held that generally applicable laws that are neutral toward religionthat is, do not target or disfavor religionreceive 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 bakerys 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 Courts 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 VIIs commands in appropriate cases. Such cases have not yet reached the Supreme Court, but the Bostock opinion certainly invited them.

The Supreme Courts 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 Amendments 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 publicindeed 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 Californias 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 timesay, at a grocery storea 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. Tandons approach, it would turn out, foreshadowed Fultons.

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 Philadelphias 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 agencys noncompliance with the rule. The Citys antidiscrimination policies, therefore, did not constitute generally applicable law. Accordingly, strict scrutiny, rather than Smiths 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 inapplicablelikely 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 isnt 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, Fultons negotiated 15-page majority opinion and nearly 100 pages of concurrences by the Courts 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 breakingor followingthat 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 SmithJustices Alito, Barrett, Gorsuch, Kavanaugh, and Thomasbut 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 Arlenes 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 Barretts 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 levelsall 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 jurisprudenceinstead of moving speech law, perhaps, toward the blunt one-size-fits-all rule that the Kennedy Court had increasingly embraced. Barretts 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 CourtChief Justice Roberts and Justices Barrett and Kavanaugh, along with the Courts liberals, Breyer, Kagan, and Sotomayornonetheless 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 novoif perhaps in the shadow of constitutional avoidancethat foster services are not covered by Philadelphias 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 accommodationsso-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 governments 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 nations social and economic life. Straight Couples Only signs can now be posted with full constitutional protectionat 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.

Amanda Shanor is an assistant professor at the Wharton School of the University of Pennsylvania.

Shanor was part of the ACLU team that represented Charlie Craig and David Mullins, the gay couple denied service by Masterpiece Cakeshop, before the U.S. Supreme Court. She also advised ACLU counsel for the transgender plaintiff and joined an amicus brief of scholars of philosophy on behalf of the employees in the cases consolidated in Bostock.

This essay is part of a 9-part series, entitled LGBTQ+ Rights and Regulation.

See the original post:
LGBTQ+ Need Not Apply - The Regulatory Review