Antidiscrimination Laws and the First Amendment

Part I of this Article discusses the development of Supreme Court doctrine regarding First Amendment challenges to the enforcement of antidiscrimination laws. Part II discusses attempted justifications by courts and academics for applying the toothless compelling interest test in conflicts between the First Amendment and antidiscrimination laws. Rationales have ranged from Congress’ purported intent to eradicate discrimination by passing Title VII of the 1964 Civil Rights Act to the anti-caste attributes of the Reconstructions Amendments. All of these arguments fail. Also examined is the threat reliance on the compelling interest test posed to the rights of speech, expressive association, and the free exercise of religion. Boy Scouts of America v. Dale, discussed in detail in Part III, reversed this trend. The Court affirmed what should be obvious under our constitutional system: that free speech and associated rights protected by the First Amendment trump statutory antidiscrimination provisions. As Part IV of this Article explains, Dale’s holding signals a new willingness by the Court to take the First Amendment seriously when antidiscrimination laws are at stake. However, Dale applies directly only to non-profit, primarily expressive associations. Religious associations will especially benefit from Dale. Dale will ensure that their ability to convey their values will not be undermined by religious dissenters who try to force themselves on religious associations via antidiscrimination laws. Dale should also end the worrisome spectacle of courts and government agencies neglecting freedom of speech in deference to antidiscrimination laws