Exclusionary Expressive Conduct

The First Amendment has become one of the most effective weapons in the conservative movement’s legal assault on progressive public policy and the regulatory state. Although the First Amendment safeguards speech, expressive association, and religious belief, exclusionary conduct is rapidly earning constitutional protection across doctrinal areas.

     This Article is the first to examine and critique the inconsistency and bias with which the Supreme Court has responded to expressive conduct claims in each doctrinal area through both a historical and contemporary lens. One theme across doctrinal areas is the Court’s selective use of deference—in evaluating claimants’ assertions regarding the expressive nature of their exclusionary conduct, the expressive nature of an association’s exclusionary policies, or the burden that compliance with civil rights laws would impose on their asserted associational message or religious exercise.

     The First Amendment should not be as manipulable as a tool for judges to handpick winners and losers based on favored or disfavored views reflected in the exclusionary expressive conduct, associational practices, or religious practices at issue. In the past, the Supreme Court laid the groundwork for an objective, evidence-based approach for assessing the expressive nature of conduct, the burden of compelled inclusion on an association’s exclusionary interests, and the burden legal compliance would impose on religious exercise. Lower court judges should revive this analytical tradition. The judiciary’s failure to perform that role today in cases primarily involving conservative First Amendment objections to civil rights statutes suggests an ideological agenda that erodes public trust, threatens democratic norms, and dismantles antidiscrimination law. It does not have to be this way.