Wednesday, July 1, 2020
Professor Luke Boso of the University of San Francisco School of Law has posted a new piece entitled "Anti-LGBT Free Speech and Group Subordination" on SSRN. Professor Boso draws from Critical Race Theory to reconceptualize the relationship between liberty and equality. The full abstract is given below, and the article is available for free download here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3630648
In 2020, the Supreme Court in Bostock v. Clayton County, Georgia held that Title VII, a federal workplace antidiscrimination law, prohibits discrimination against gay and transgender employees. The majority concluded by citing potential concerns from religious and conservative dissenters, and it suggested that Constitutional and statutory principles of religious freedom and free speech might override LGBT-inclusive antidiscrimination commands in appropriate cases.
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. Today, dominant conceptions of both Equal Protection and Free Speech are informed by libertarian ideology, reflecting a commitment to limited government oversight and regulation. A pluralistic and progressive society must more adequately balance libertarian interests in the exercise of individual rights—like Free Speech—with the need for government action to promote equitable outcomes. This Article joins voices prominent in the field of Critical Race Theory who argue for an antisubordinating approach to both equality and liberty. Simply put, if the triumph of a Free Speech claim would enforce a status hierarchy that positions historically oppressed groups as inferior, that Free Speech claim should fail.
The moment is ripe to reconceptualize liberty and equality. In response to a shifting social and legal climate that is increasingly less tolerant of bullying, embraces liberal sexual and gender norms, and seeks to institute formal equality for formerly disfavored groups, many in the conservative movement have turned to the First Amendment to protect the status quo. A libertarian view of the Constitution ensures that meaningful liberty and equality exist only for some. The LGBT community and the backlash to its increasingly protected legal status sit at the epicenter of current court battles over the contours of equality and the breadth of the First Amendment, but equity for all marginalized groups is at stake.