This week, the Supreme Court is considering two cases that may determine whether the justices invoke the First Amendment to blow up anti-discrimination laws and the Affordable Care Act. On Monday, the Court delayed a decision about whether to hear Elane Photography v. Willock, a lawsuit filed by a photography studio in New Mexico whose owners said they had a religious objection to shooting a same sex commitment ceremony. And on Tuesday, the Court will hear 90 minutes of oral arguments in the most closely watched cases of the term, Hobby Lobby and Conestega Woods, which raise this question: Can religiously motivated employers in for-profit corporations claim an exemption from the Obamacare requirements to provide contraceptive carriers?
Although there are technical differences between the two cases, both will force the justices to confront the future balance between the First Amendment on one hand and anti-discrimination laws on the other. In particular, the justices will have to decide whether the logic of Citizens United—that individuals who organize themselves as for-profit corporations have the same First Amendment rights as natural persons—includes rights of religious freedom as well as free speech. The justices may find narrower grounds to decide all three cases, but taken to their logical conclusion, the claims of the religious business owners in all of them would mean the end of anti-discrimination laws as we know them.
That’s the surprising consensus reached in a recent podcast debate hosted by the National Constitution between Richard Epstein of N.Y.U. Law School and Michael Dorf of Cornell Law School. “There is no limiting point to the claim that if I don’t agree with the message expressed by [commercial] activity, I get to opt out, “ Dorf argued. “The free speech exception could end up blowing up public accommodations law.” Epstein’s principled libertarian response: “Yes, he’s right, and it’s probably a good thing if it happens.”
As the leading libertarian critic of modern public accommodations laws and other federal laws that coerce private individuals in the market, such as the Obamacare contraceptive mandate, Epstein hopes the Court will use both cases to say that small businesses have the same First Amendment rights as organized religious employers like the Catholic Church and private individuals and non-commercial groups like the Boy Scouts. “The tragedy of the Obamacare debate is that it was pitched in terms of the Commerce Clause, while the real question is whether forced association and the mandate are consistent with free association,” he said. “Yes I do want to go back to the pre-1937 position with respect to liberties.”
The Elane Photography case began in 2006, when Elaine Huguenen, a New Mexico photographer, refused the request of a lesbian couple to photograph their commitment ceremony. The case led Arizona to propose a law, which Governor Jan Brewer vetoed, which would have expanded Arizona’s Religious Freedom Restoration Act to allow religiously motivated business to claim exemptions from laws they opposed on religious grounds. The New Mexico Supreme Court ruled against Elane Photography, on the grounds that New Mexico’s laws prohibiting discrimination by places of public accommodation don’t constitute compelled speech and that no one was likely to conclude that the photographs taken of gay weddings reflected the views of Elaine Huguenen or her employees.
Supporters of Elane Photography are arguing that small businesses and other commercial activities should be able to invoke the First Amendment’s protections for “expressive association” to refuse to comply with anti-discrimination and other laws with which they sincerely disagree. As Michael Dorf said, the Supreme Court in the past has rejected this argument, which has no clear stopping point. “Some people have said they have an expressive right not to bake a cake or arrange flowers for a wedding … making toast or pencils [can be] be artisanal, anything can be expressive, and there’s no limiting point to the claim that if I don’t agree with the message expressed by this activity, I get to opt out.”
In a brief filed for the CATO Institute, Eugene Volokh and Ilya Shapiro proposed one limiting principle: The Supreme Court could distinguish between commercial activities with expressive components, like photography, and those that aren’t expressive, like "caterers, hotels, and limousine companies.” But both Dorf and Epstein rejected the distinction. Dorf noted that the Supreme Court has insisted that private organizations like the Boy Scouts have the right to define their own message, without being second-guessed by the courts. And Epstein said that limiting the exemption from anti-discrimination and public accommodations laws to businesses that can be characterized as “expressive activities” is “politically incoherent and not “intellectually defensible.”
Epstein hopes the Court in both the Elane Photography and Hobby Lobby cases will extend the logic of Citizen United to hold that commercial enterprises have the same First Amendment rights of religious expression and free speech as natural persons. “Citizens United held that nobody, when they adopt the corporate form, has to surrender individual rights,” he said. “Every person should have the ordinary ability to pick the people with whom they wish to deal and the terms and conditions under which they want to trade. The Supreme Court dashed that to bits with the employment cases in the 1930s and 1960s and I regard that as a mistake—there’s no evidence that the heavy hand of the government can do better than the competitive market.” Dorf’s response: “Society has decided, not withstanding Professor Epstein, that we need public accommodations laws and anti-discrimination laws. Will the Court say that, even in the economic realm, we have a libertarian principle that prevails over the egalitarian one? There’s no way to adopt that without going back to a pre-1937 view of the Constitution.”
The decisive vote in all three cases may come down to Anthony Kennedy, the justice who demonstrated a fierce libertarian hostility to the Affordable Care Act’s health care mandate and the author of Citizens United. In that case, he insisted on ruling broadly that corporations have the same free speech rights as natural persons. Now he has to confront the logical implications of his sweeping ruling and decide whether he is willing to jettison the entire structure of public accommodations and anti-discrimination laws, as well as the Obamacare contraception mandate in the process.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.