Working Paper No. 00-39:
Antidiscrimination Laws and the First Amendment

Author(s):

David Bernstein

Date Posted: 2000

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Abstract:

The Supreme Court's decision last term in Boy Scouts of America v. Dale holding that the Boy Scouts had a First Amendment expressive association right to exclude a gay adult scoutmaster is one of the most significant, and positive, recent developments in civil liberties jurisprudence.

When conflicts between antidiscrimination laws and First Amendment rights first arose in the 1970s, courts simply refused to acknowledge that antidiscrimination laws sometimes trespassed on constitutional rights. The Supreme Court finally acknowledged in the 1980s that antidiscrimination laws could potentially impinge on First Amendment rights. Instead of enforcing those rights, however, the Court either denied that the First Amendment was implicated in any particular case, or applied a toothless "compelling interest" test that in effect exempted antidiscrimination laws from the strictures of the First Amendment.

Lower courts seized and expanded upon these decisions to the point where antidiscrimination laws gradually became a significant menace to freedom of speech, freedom of expressive association, and religious freedom. For example, courts held that an injunction creating a prior restraint on speech was appropriate in a hostile environment case; that a Black separatist organization could be compelled to admit whites to its meetings; and that the government could force a Catholic university to fund student organizations that engaged in political and social advocacy contrary to Catholic doctrine.

Dale has significantly reduced the threat antidiscrimination laws once posed to constitutionally-protected civil liberties. Although Dale was a 5-4 decision, with the conservative Justices in the majority, all nine Justices seemed to agree that the First Amendment must be enforced even when the implementation of antidiscrimination laws is at stake.

Despite lip service paid to precedents applying the compelling interest test to overcome First Amendment restrictions on antidiscrimination laws, neither side discussed whether the government has a compelling interest in eradicating discrimination against homosexuals. Dale suggests the Court has reached a consensus that defendants charged with violating antidiscrimination laws are generally entitled to the same full First Amendment protection as defendants charged with violating other important laws. Antidiscrimination laws, then, have been constitutionally normalized.