Anti-LGBT Free Speech and Group Subordination

This Article is about the tension between liberty and equality. It examines this tension in the context of disputes over free speech and LGBT rights. In the modern Civil Rights Era, the social and legal climate has become increasingly intolerant of bullying, embraced liberal sexual and gender norms, and sought to institute formal equality for formerly disfavored groups. The conservative movement has responded in part by seeking refuge from progressive change in constitutional jurisprudence, articulating theories of both the First and Fourteenth Amendments to effectively protect the status quo. Because of a receptive Supreme Court, dominant conceptions of both equal protection and free speech are informed today by libertarian ideology, reflecting a commitment to limited government oversight and regulation. A libertarian view of the Constitution, however, ensures that meaningful liberty and equality exist not for everyone but only for some. To create a more equitable society, constitutional interpretation must more adequately balance libertarian interests in the exercise of individual rights—like free speech—with the need for governmental action to promote the public good and address group-based harms.

This Article draws from the field of critical race theory to advocate for an antisubordination approach in mediating competing claims of equality and liberty. Unlike a libertarian free speech jurisprudence that treats all speakers and viewpoints as equally worthy of constitutional respect, an antisubordination approach to free speech is attentive to historical and contemporary modes of group- based oppression. Simply put, if the triumph of a free speech claim would enforce a status hierarchy that positions historically marginalized groups as inferior, that free speech claim should fail.

The need to reconceptualize liberty and equality came into sharp relief in the Supreme Court’s 2020 decision in Bostock v. Clayton County. The Bostock Court held that Title VII prohibits discrimination against gay and transgender employees,but the majority concluded by expressing concern for religious and conservative dissenters. The Court suggested that constitutional and statutory principles of religious freedom and free speech might override antidiscrimination commands in appropriate cases. The jurisprudence that emerges from these developing cases will help determine the scope of equality, the breadth of First Amendment liberties, and the Constitution’s role in addressing inequity for all marginalized groups.