So to Speak podcast transcript: LGBT equality and the First Amendment

February 7, 2019

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Okay. Welcome back So to Speak, the free speech podcast where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations.

Our guest today is Professor Carlos Ball. He is a distinguished professor of law and Judge Frederick Lacey Scholar at Rutgers Law School where he is a leading expert on LGBT rights, and he’s published several books on the topic and more than 30 articles.

And one of those books, which is the topic of our conversation today, is The First Amendment and LGBT Equality; a Contentious History.

Professor Carlos Ball, thanks for coming on the show today.

Prof. Carlos Ball: Thank you very much for having me, Nico.

Nico: So, a ‘Contentious History.’ Why do you subtitle at that?

Carlos: Well, when I first – the reason I wrote the book was because at the time, this was around 2015, 2016 when I started the project, there was quite a bit of tension between on the one hand the push for an expansion of LGBT equality.

And the other, the use by primarily, though not exclusively, social and religious conservatives of the First Amendment as a shield to try to protect certain individuals and entities from the application of LGBT antidiscrimination laws.

This, at the time, I think to some extent that’s lessened a little bit now, but in 2015, 2016 going into 2017, a week would not go by with the New York Times, for example, did not have an article about a florist in Arizona or a baker in Oregon who’s claiming that the first amendment allowed him, her, or the company that they work for a protection from the application of antidiscrimination laws. And it was very contentious then, it’s still contentious today.

Nico: But that came in the wake right after Obergefell, right? So, there’s probably some backlash on the part of social conservatives to that decision figuring out actually with the scope of the decision meant for them in their personal lives.

Carlos: Yeah. It actually started I would say a couple of years leading up to Obergefell when it seemed like the Supreme Court was going in that direction. And one of the things that I want to do with the book is to make the point that what’s happening now, this tension if you will between the First Amendment on the one hand and the pursuit or the attainment of equality objectives is nothing new.

It’s not something that started in 2014, 2013, it’s something really that our country has been grappling with in other contexts outside of sexual orientation really since the Civil War, and the topic that I’m particularly interested in when it comes to LGBT rights, the contentious history of the subtitle really started 30, 40, 50 years before Obergefell. And that’s the story that I wanted to tell in the book.

Nico: And you start your book with a little bit of the history so to speak. It’s the story of the LGBT community and how they utilized the First Amendment to secure for themselves the right to come out of the closet in some senses to even speak about their sexuality.

So, can you talk a bit about how they utilized the First Amendment in that context?

Carlos: Yeah. One of the things that really fascinates me about the history of the way in which the movement used the First Amendment is initially, at the time, LGBT people had no legal rights whatsoever. No constitutional rights. No statutory rights.

And it was the First Amendment and the free speech clause in particular that we can to provide a modicum, right, initially very modest form of protection to individuals who initially really wanted to do nothing more than meet, talk, maybe publish a magazine or two related to sexual orientation issues, and when they pressed against or they confronted government pushback and censorship and oppression, they didn’t turn to the core protection clause. They didn’t turn to the process.

Nico: Or the privacy.

Carlos: Or the privacy argument. They turned to the First Amendment. And I was interested in finding out both sort of how that happened and why that happened.

Nico: So, let’s talk about two examples of the utilization of the First Amendment in securing the rights to, in these cases, publish magazines. In your book, you highlight the one case and the case – MANual.

Carlos: This MANual Enterprises versus Olesen.

Nico: Yeah. Tell us a little bit about those two cases and what they mean to the movement?

Carlos: So, those are what I think we can fairly call in hindsight the first two LGBT rights cases that went before the Supreme Court. They’re relatively unknown cases. Most people when they’re talking about the history of LGBT rights, in the courts, they tend to start in the 1970s, but these cases were decided in the late 1950s and early 1960s, and they were essentially applications of the federal obscenity statute, the Comstock Act from the late 19th century that not only criminalized the use of mails for the distribution of “obscene materials,” but also authorize the post office to seize materials that had been submitted to it for distribution it in its opinion the materials were obscene.

And the first of these cases, which involved really the first LGBT rights publish magazine published in the United States, called One, a magazine which published fiction, poetry, stories about gay people in the United States, incredibly enough in the early 1950s, the post office deems the magazine to be obscene and refuses to distribute it.

And at that time, if the post office did not distribute your magazine, you basically were not able to share your ideas and your viewpoints with the public.

Nico: Yeah. And that magazine, the one that was collected by the post office, was released in 1954, and it actually was a magazine that on the cover said, ‘Can you print it?’ Which was about censorship of these viewpoints. Correct?

Carlos: That’s exactly right. So, the lawyer who was representing the magazine wrote one of the articles in that particular issue, was talking about what the magazine did and did not do. Just try to stay clear of the ‘obscenity authorities,’ and that involved, not surprisingly, staying away from any explicit depictions of sex, and by the way it’s mostly text in this magazine.

Nico: There’s like a poem.

Carlos: Yeah. There’s a poem. There’s a short story. The short story that caught the attention of the postal authorities involved an older woman who put her hand on the knee of a younger woman who was over the age of 21 and that according to the government was obscene. And again, there was nothing in the law at the time.

You could argue this was a violation of the equal protection clause. The government is targeting gay people. Treating them differently, but the equal protection argument was not going to go anywhere. There was no understanding of the privacy right back then much less a privacy right that applied to gay people.

The only, the only source of protection was the free speech clause, and even that was controversial. When the magazine issues were seized by the government, the publishers of the magazine went to the ACLU in Southern California.

Nico: And turned them down.

Carlos: The ACLU said this is too controversial. We cannot represent you.

Nico: So, the Supreme Court takes up the case and doesn’t even hear argument for it. Just right say unanimous opinion. Was this the one-sentence opinion more or less saying that they need to distribute the magazine?

Carlos: Yes. So, the court shortly before the gay magazine case had decided another case. A big obscenity case called Roth versus United States in which the court sort of set out a definition of obscenity. And the interesting thing about Roth, when we think about Roth from the vantage point of 2019 –

Nico: It’s not very protective.

Carlos: It’s not very protective, right? Civil libertarians have been troubled by Roth from the very beginning for understandable reasons, because among other things he uses this very vague, malleable concept of community standards to determine what is obscene and what is not.

But on the other hand, Roth did two important things that ended up helping the publishers of the gay magazine. Number one, the court on Roth said sex does not equal obscenity. Right? And so, you can have depictions of sex that don’t rise to the level of obscenity.

Number two, this community-standards test that is in hindsight so problematic was an improvement believe it or not to what the law that existed before Roth. Because the law before Roth was if individuals who are particularly sensitive or vulnerable are likely to be morally compromised by the materials, and what the government had in mind there in particular was children, right, the government could criminalize the distribution of the material.

So, that’s a very, very broad definition of obscenity. The community-standards test was a narrower definition of obscenity and really there was nothing about the gay magazine at issue that appealed to the prurient interest, which is another term that comes out of Roth.

Nico: So, let’s talk about the second case involving Physique Magazine. It’s the court more or less doing the same thing. Correct?

Carlos: It is. The court, they’re actually – we have several opinions in that case. It was not summarily reversed as it was in the ONE case. In the Physique Magazine case is interesting, because they’re, while there was not full of unity, it was mostly photographs of half naked men, most of them in someone suggestive positions; sexually suggestive.

From our vantage point today, very, very benign photographs compared to what’s found in the Internet and elsewhere today, but back then –

Nico: These were common magazines within the gay community.

Carlos: They were common magazines within the gay community, and so if the court had wanted to, it could have upheld the government’s seizure of those magazines, because they were more sexually – the sexual component was higher than in the first case. But what the majority in the Manual Enterprises case, which is the name of the Physique Magazine case, what the court did in that case it, it compared those photographs to the Marilyn Monroe type pinup calendar photographs and said, you know, these are not very different. These are not very different.

And this is the key point. Just because they are intended for gay audience doesn’t by itself make the materials obscene. Now, for us today, that’s an obvious point, but back in 1962, it was a huge, hugely important step that the court took, because with the government was arguing in those cases was defending the idea of so-called a thematic obscenity, sort of the notion that a material can be obscene even if it’s not sexually explicit if it’s promoting ‘immoral relationships.’ And that applied to adultery and it applied to same-sex material.

And the court said in the Manual Enterprises case and another case involving Lady Chatterley’s Lover, the licensing of that movie in the State of New York, remember the license was denied, the court said no. Like this idea of thematic obscenity, the idea that you can have something that is obscene because of the ideas behind what is being depicted as opposed to the sexual explicitness of the depictions. That violates the free speech clause. And again for an early LGBT rights movement, that is a crucial moment.

Nico: And was there any idea within the community at the time that the person that it was important, or was it just a means to an end, or was it an end in itself?

Carlos: I think there was an understanding that it was in and of itself intrinsically important, because I think several members of the – this is especially true of the publishers of the first gay magazine of ONE, which was a political magazine. You know, the Manual Enterprises case, the Physique Magazine, it had sort of political aspects to it, but it was primarily about providing sexually appealing photographs to gay men.

But ONE had a political mission. And they understood. And they saw themselves defending First Amendment rights not only for the short-term interests of the LGBT community as sort of more broadly, right? This is an important principle. This is government censorship, a threat to the democracy.

Nico: Yeah. Because when you think about the early history of the development of the First Amendment, a lot of it came as the result of practical concern surrounding World War I or trade unions, for example, the birth of the ACLU, and a lot of those people who were involved in those movements became leaders of the ACLU subsequently and then strong advocates for the First Amendment.

The LGBT community almost had a perfect record it sounds like from your book in litigating these First Amendment cases, especially if you go to college campuses.

Can you talk about some of the college campus cases that were seeing their way through the courts at the time?

Carlos: Yeah. So, these cases happened a little bit later. These cases starting emerging in the early 1970s. The obscenity cases that we just finished talking about, they were pre-Stonewall cases. The college cases are post-Stonewall.

Nico: I guess to bridge that, we should first talk about the authorities realized they could lose, or would lose the obscenity cases, so they started going after the gay communities in other ways, right?

Carlos: Absolutely. And so –

Nico: So, what would those devices?

Carlos: Yeah. So, those devices, they tended to be – so, after the two cases that we just talked about, it was pretty clear that the government cannot go after the gay magazines because of the viewpoints and messages that were being expressed in them, but when gay people started, as they had been doing for decades, congregating in public, right, whether it was in bars or whether it was in college campuses to just give two examples, that public coming together in an open way gave government actors an excuse if you will for further regulation.

And so, the bar cases, which actually are a nice bridge between the obscenity cases and the college cases, those started also in the 1950s, and they were really enforcements of liquor license regimes where liquor license authority started to penalize bars that permitted gay people to congregate by taking away their license.

And of course if you take away the liquor license from these establishments, then you’re pretty much putting them out of business.

Nico: Yeah. And why was illegal for gay people to congregate in a bar?

Carlos: That’s right. And which today is sort of a ridiculous question. Of course the people like all people have the right to congregate in public, but that was not clear in the 1950s and ‘60s, and it took a few judicial opinions, not federal ones interestingly enough, these were state court opinions, and I started very narrowly.

They started with the idea that the government here is going after association, not because what people are doing but because of who they are, right? You’re closing down these bars because gay people are congregating in them. You’re not closing them down because of any particular conduct that those individuals are engaging in.

Nico: Although there were arguments that they would likely engage in illegal conduct like sodomy, for example.

Carlos: There were. And the very early cases said you have to wait until it actually happens. You have to wait until you have the contact, and if you have the conduct, then you can closing down, but his long as – but if you don’t have any evidence of conduct, if the only conduct in question is the association, then that violates the free-speech clause and the right of association that it derivative of it, and as I explain in the book, that right of association arises primarily from the civil rights cases of the 1950s.

That’s one of the things that the early LGBT movement was able to do was to piggyback on some of the cases that the Supreme Court had decided in favor of civil rights activists who were being harassed primarily in the south for doing nothing more than congregating and marching and protesting.

That case law was very clear, and it became a matter of relying on that case law in making the very basic point, right? If civil rights advocates have the right to congregate and agitate and associate in favor of civil rights objectives, gay people have the same right.

And so, what happened in the 1970s was that some public universities after Stonewall, as the second phase of the gay movement kicked in, more radical than first phase, more sexually liberationist, some public universities started either prohibiting gay groups from meeting on campuses or alternatively simply refusing to recognize organizations formed by sexual minorities as student groups that are associated with the University.

And there were at least a dozen of these cases litigated in the 1970s and the early 1980s, and LGBT plane test prevailed in every single one of them.

Again, this is at a time when gay people had no rights to equal protection, no privacy rights whatsoever, certainly not at the federal level, and yet starting as early as 1970, the gay litigants win every single one of the student cases.

Nico: I wanna talk a little bit about the belief versus conduct or the status versus conduct distinction, because it’s an important part of your book and this story, right?

Carlos: It is, because the status versus conduct distinction later on in the history of the movement became a very controversial one primarily as a result of a case called Bowers versus Hardwick in which the Supreme Court, in 1986, held essentially that the state, the government, can criminalize private, consensual, sexual intimacy between two individuals of the same sex.

After that case, the LGBT movement, for understandable pragmatic reasons, started to emphasize the difference between status and conduct. So, if the state can criminalize a conduct after Bowers, it might still be unconstitutional for the state to regulate on the basis of status.

That distinction however, outside of the court room was one that was quite controversial within the movement, because of the whole idea that you can separate conduct from status is really at the bottom line, it’s a problematic distinction, because much of the status of individuals who self identify as LGB, is based on the relationships that they have, the intimate relationships that they have.

And so, the status conduct distinction became quite controversial in the ‘80s and ‘90s, but one of the points that I make in my book is that it was helpful in the 1950s and ‘60s, because courts were not ready to recognize that LGBT people had constitutional rights that might arise from the conduct that they engaged in. But they were open to the idea that there was something constitutionally problematic, including constitutionally problematic from the First Amendment perspective, about penalizing people, not because of what they did but essentially who they were as individuals and with whom they associated.

Nico: What do you make of judicial incrementalism then not only just as a judicial philosophy, but also as one that may or may not be necessary in bringing along public opinion, because I know if you’re an activist, now I’ve been an activist for various things during various points of my life, you want it all now, but you also don’t want to lose the gains by getting it all too soon and getting immense public backlash as a result.

Carlos: Yes. And I think that debate is in many ways more relevant outside of the courtroom, right? But when you’re in the courtroom and when you’re trying to persuade judges that your position is consistent with what the courts have as a general matter decided before, there is no way of doing it other than incrementally, because you need to persuade the judges as an initial matter that maybe the particulars are different but the fundamentals of the same.

And that’s one of the criticisms of activism through the courts, right? That it is incremental. It is step-by-step, but it is I think an intrinsic part of the legal process.

Nico: Was there an architect somewhere in this movement for the legal philosophy to strike down some of these regulations on gay communities’ lives, or did happen more or less organically, because in your book I don’t see an architect?

Carlos: Yeah. That’s interesting. There are architects, but there’s no Thurgood Marshall, right, who’s one of the paradigmatic examples of that idea of having an architect. That there were –

Nico: Or Justice Ruth Bader Ginsburg.

Carlos: Or Justice Ruth Bader Ginsburg. Exactly. There were individuals along the way, but it was interestingly enough I think very much a communal effort starting I wanna say late 1970s, early 1980s, a group of lawyers [inaudible] [00:24:41] legal defense [inaudible] with the ACLU with a couple of the regional LGBT groups start to meet in Manhattan once a month, once every two months, just to talk about cases, talk about strategy.

And it is from this group of lawyers who are coming together and trying to say okay what is our objective, how do we get there, that we see some sort of work by architects, but you can’t really say there was one individual who sort of dominates in the way that there’s an individual that’s understood to dominate in some of these other civil rights areas.

Nico: So, we’re winning on the speech front. We’re winning on the free association front. How do we get to privacy in equal protection?

Carlos: So, I think what the First Amendment victories, the free speech victories, allowed was conversation, discussion, sharing of ideas, policy proposals. One of the points that I make in the book, is that ultimately the objective was to start changing the minds of Americans in general, and policymakers and judges in particular, about the basic equivalents between LGBT people and straight people, LGBT relationships and straight relationships.

And it is really only after a couple of decades of constitutionally protected speech and agitation and association that with see minds starting to change.

Nico: You can’t change minds unless you can speak to them about what you care about.

Carlos: Absolutely. And so, one of the points that I’m making in my book is that when it comes to LGBT rights as a general matter – there are a couple of exceptions, but as a general matter, free-speech rights came first, and the equality and privacy rights followed as a basic normative matter.

When it comes to equal protection laws in the United States, courts ask the question. It’s a simple question. Is the party who is claiming that they have been discriminated against, are they similarly situated to the party or group that’s enjoying the benefit in question?

That calls for an assessment, right? Even before you talk about well, is the government justified in the differential treatment, do you have the two groups that are similarly situated. And it took a couple of decades of First Amendment protected activity to start to persuade people, including judges, the gate people, LGBT people were in fact similarly situated to heterosexuals.

Nico: Yeah. Because if you’re a critic, it seems to me easy to make the argument to say well, they’re gay and in that sense they’re not similarly situated, but I mean you could find differences between people almost – you could go forever in finding differences. So –

Carlos: And so, the key point is sort of which differences matter –

Nico: Matter. Yes.

Carlos: – in which don’t. And that’s what the men did for several decades in through the exercise of First Amendment rights. This is a different session not matter as a matter of law or policy in the same way that race, in the same way that gender should not matter either.

And what was very helpful early on in the 1950s and ‘60s for the movement when it comes to free speech doctrine was that the application of the free speech clause didn’t require that kind of analysis, right? Are the ideas being promoted, are they in any way equally valid to the ideas that – through the alternative ideas.

Well, just to engage in that type of inquiry violates the free speech clause if it’s a government who’s engaging in that, right. So, the –

Nico: So, it relies on neutral principles. It’s blind so to speak.

Carlos: Absolutely. Right? And so, when the government argued in the Manual Enterprises cases and the Physique Magazine cases, right, that it should matter that homosexual conduct is immoral when it comes to understanding the scope of the free speech clause, the court essentially said no. Right?

The morality or immorality of the underlying conduct doesn’t matter as long as what’s being depicted is not so sexually explicit that it rises to the level of obscenity.

Nico: So, we start getting antidiscrimination laws passed in the state and local level that protect sexual orientation, for example, and then the question becomes well, what does this mean in the context of religious liberty or people that stand in opposition to these antidiscrimination laws.

What do we as people who, for example, oppose same-sex marriage on religious grounds, what are we required to do in our businesses, in our houses of worship, etc., etc., and one of the things I love about your book is it takes this liberty versus equality debate seriously and frames it in a historical context that you say dates back to 1875 with the first Civil Rights Act.

So, can you explain to me what you mean by liberty versus equality, and then, also historically how has America looked at this debate and how have we allowed people with disparate views on various things to coexist?

Carlos: So, sure. So, I mean the liberty versus equality debate, what I mean by that, the quality side of it is relatively straightforward, right? I mean the equality is sort of equal treatment under the law if the government is going to treat individuals or groups differently. The government needs to have some reason for that differential treatment. That’s on the equality side.

On the liberty side, there are a lot of different types of liberties that might be implicated in as the government attempts to promote equality, right? And so, to the extent that individual’s ability to choose to whom they sell their widgets to, right, who is allowed to join a particular organization, how their private property is used and how the government can regulate private property in order to achieve the quality objectives, all of those fall under this admittedly wide category of liberty and as Isaiah Berlin and many others have argued, there comes a point where there is an irreconcilable tension between the two when difficult choices must be made between liberty and equality.

Nico: And within liberty, you could say there’re negative rights, the prohibition on the government requiring you to do something, and then there’re positive rights, which is the government requiring you to do something in protection of someone else, for example.

Carlos: Right. Correct. And constitutionally, right, the way in which liberty has been understood in the United States for the most part has been in the negative component of that, essentially government leave me alone so that I can engage in my constitutionally protected activity whatever it might be, to speech or to associate or to have sexual intimate relationships, but there are sometimes, right, and the right to marry and the right to vote are two examples of this, where it’s actually not about being left alone, right?

It’s about the government making the conditions possible, right, for the liberty right to be exercised. But yeah. But as a general matter, when we’re talking constitutionally, it is a matter of negative liberty. Yes.

Nico: So, this debate goes back to 1875 then where the government was trying to navigate this tricky territory where we want to enforce the laws that we created after we fought a civil war over the rights that African-Americans have and also the religious liberties, although religious liberty didn’t come much, did it, in 1875?

Carlos: Actually, it did. It was actually those who opposed the 1875 federal statute that essentially prohibited places of public accommodation, inns, restaurants, stores, from discriminating on the basis of race –

Nico: And those who wanted to discriminate made a religious argument for doing so.

Carlos: And that was part of – yes, they did. In part, there was this specious argument that if we have to integrate our inns and our restaurants, marriage is next, right?

So, the link with anti-miscegenation, of course anti-miscegenation laws are very much sort of embedded – or defended in religious doctrine, but the 1875 – I didn’t know this until I started writing the book, this is an interesting historical footnote that that statute, which the bill was originally proposed by Senator Charles Sumner of Massachusetts, the famous anti-abolitionist, he wanted to include incorporated churches within the scope of the Civil Rights Act of 1875, which was not surprisingly incredibly controversial, and eventually it was stripped from the bill, but there were understandable sort of free exercise arguments that were raised against the provision.

And so, what I do in the book, starting with the statute in 1875 and then move on to the 1964 civil rights statute and then talk about some cases from the 1980s involving the tax exemption for Bob Jones University, which was at the time discriminating on the basis of race, and then I talk about some gender discrimination cases in the way in which they intersected with liberty claims.

This idea that there is something uniquely different or particularly problematic about Obergefell and same-sex marriage and its impact on liberty is I think a myth when you look at it historically, because we have at different times in our history been grappling with how to, on the one hand, promote equality while on the other hand protecting basic liberty rights, and this is just a new chapter of a very old debate that we’ve been having in this country.

Nico: And in your book, you talk about how some of the critics argued that what marriage equality advocates were looking for was sort of LGBT exceptionalism so to speak, and some of the critics said we didn’t find a civil war over sex discrimination and this being the argument that the only perhaps important category of person to consider for exceptional treatment in their minds would be those who are being discriminated based on race.

Why is that argument wrong? I mean is there a concern on their parts that you could just keep getting categories upon categories upon categories of person stacked upon each other within these antidiscrimination laws?

Carlos: Yeah. You know, what I argue in my book, what makes the most sense to me is looking back at the ways in which we have as a country through our laws and our policies dealt with this tension between equality and liberty and try to glean lessons from it and to, as a general matter, treat the contentious issues that we’re dealing with now, which are primarily over LGBT rights, in the same way.

So, we have been consistent through the decades. We as a country have been consistent since the early 1960s at least, to give you just one example, that commercial actors are different, right? That when you open your store or you open your restaurant to the general public, your ability to pick and choose customers, regardless of the reason why you’re doing it, whether it’s on race or sexual orientation or gender or – and any of those might be religiously based, your ability to rely on constitutional protections to defend the differential treatment is going to be severely limited.

Very, very different however when we’re talking about truly private organizations, private associations, where everybody there wants to be there and there’s nothing that’s being offered for sale to the public.

And so, my argument is we should not treat LGBT issues any differently than we treated race issues or we treated gender issues. The gender cases from the 1980s make it very clear, right, that there is no constitutional right on the part of commercial actors to discriminate in the commercial marketplace, right?

So, it seems to me that the burden should be on those who want to treat LGBT rights differently, those who want to treat same-sex marriage differently, the burden should be on them to prove or to argue why we should treat the issues differently.

One of the arguments that they have made is that those who defend broad exemptions for commercial actors based on the First Amendment from the application of LGBT antidiscrimination laws is related to the fact that everybody who thinks that – if you believe that a cake should not be offered to sale to somebody because of their race, that is per se racist, right? That is per se an unreasonable position to take that should not be cognizable in the courts of law.

But when it comes to LGBT rights issues, we hear people of good faith disagree, right? You can be against LGBT rights or you can be against same-sex marriage without being homophobic.

And that effort to distinguish rates from sexual orientation I think I find very unpersuasive in part because notice what’s happening there, right? You’re making an assessment about the judgment that is being made. One religious-based argument is beyond the pale, the race-based one, but when it comes to sexual orientation, right, reasonable people can disagree.

And of course, reasonable people can disagree, right, perhaps, but that doesn’t mean that the Constitution imposes limits on the government when it comes to the application of antidiscrimination laws to commercial actors.

Nico: I was going to get to this later, but now that we’re already getting there, your book came out before Masterpiece Cakeshop case was granted cert. So, your focus in your book is on the photography’s case coming out of Arizona. This is a two-part question.

It’s never good as an interviewer to write a two-part question, but how do we distinguish or do we distinguish at all between someone who opens up the doors and let’s say delivers me my croissant that I just ordered and someone who services a good that might be expressive in character?

And then the second part of this question is it seems as though Justice Kennedy in writing his opinion on Masterpiece really takes the liberty versus equality stuff seriously and is engaged in that sort of incrementalism that we were talking about before.

Carlos: Yeah. So, on the first question, I think it is going to be difficult it seems to me to draw the line between constitutionally protected creative provisions of goods and services and those which are not sufficiently created.

And just to give you an example, part of what I do is I write amicus briefs, which being immodest here for a moment, I think are creative in a good sense. I think there’s a whole wide range of goods and services that could be understood as being expressive, and I have a very difficult time coming up with a standard that’s going to distinguish the two, but I’m willing to concede, yeah right, for purposes of argument, right, that okay so, maybe there is something about the baking of the cake, right, or the putting together of the flower arrangements or maybe of the taking of the photograph, that might be different for example than the provision of limo services to the wedding hall.

So, but I think that even if that is the case, which I think is problematic, but even if we concede that, what’s most important – what I think should be most important is not whether it is expressive or not expressive, because at some level, there’s expressions just about every provision of service or good.

The question becomes, right, whether in the commercial context in particular, the government has a sufficiently compelling governmental interest for requiring the business person, right, to do something, which if they’re acting in good faith, and I believe we should always assume that these individuals are acting in good faith, that they’re being sincere, they are being forced, right, to do something that they find morally problematic, but that is I think intrinsic to the application of antidiscrimination laws, right?

Antidiscrimination laws leave alone those who agree with the objectives of the antidiscrimination laws, right? It’s those who have objections to the antidiscrimination laws who are going to be mostly affected by them.

And so, the question to me – the most important question to me is not whether there is expression, I’m willing to concede that there is expression, whether it amounts to speech within the meaning of the free speech clause, I’ll concede for now and maybe argue later, but I just don’t think that – I think that the government has a compelling governmental interest as it has had for decades in the context of race and gender to make sure that these places of public accommodation are available to sexual minorities.

Nico: Yeah. So, it’s very clear to me that photography or cake baking can sit on that line as to whether it’s expression are not. I mean I think you can make the argument both ways, but what do you make of stuff that is clearly expressive and the people who are expressing themselves, for example, painter who takes commissions or a writer who takes commissions whose work, the nature of their work is based on discriminating between clients.

How do we think about them? Are they bound by these antidiscrimination laws?

Carlos: Yeah. In my opinion, they shouldn’t be, right? I mean this comes down to really a question of state law usually. What is the meaning of public accommodation under state law? And by the time the Supreme Court gets these cases, that question has already been answered, right?

In the Boy Scouts case from 2000 in Boy Scouts versus Dale in which the Supreme Court upheld the constitutional right of the Boy Scouts to exclude openly gay scoutmasters.

The New Jersey Supreme Court had concluded, right, that the Boy Scouts were a place of public accommodation. And I think there are valid arguments that can be made that we have to be careful not to interpret places of public accommodation so broadly that they would cover, for example, the painter who doesn’t put the shingle up and will paint for anybody who comes to the door.

Nico: Who takes three commissions a year.

Carlos: Exactly. Is that really a place of public accommodation? I don’t think so. I don’t think it should be, and so, I think we can statutorily answer the question without having to reach the constitutional issue. But if we have to reach the constitutional issue, I would agree that if you’re taking three commissions only a year to make paintings that you should not be forced to paint things that you find to be morally or religiously objectionable.

Nico: But that if you more or less take every ‘commission’ that comes through your door, in that case, you can’t discriminate based on these protected statuses.

Carlos: Exactly. Exactly.

Nico: So, we were talking about commercial enterprises here, but incorporated nonprofit associations, you look at them in your book a little bit differently. So, we just talked about the Boy Scouts case. You talk in your book about CLS versus Martinez, which dealt with a religious student group at Hastings College of Law over in San Francisco that wanted to discriminate based on belief, but the Hastings had an all-comers policy that went up to the Supreme Court, and the Supreme Court said all-comers policy.

Carlos: It was belief in status as well, because it was sexually excluding individuals who were engaging in same-sex sexual conduct.

Nico: Yeah. I think the policy or the – what was it? Christian Legal Society said you could be gay, you just couldn’t engage in the sexual activity.

Carlos: To engage in unrepentant homosexual conduct I think was the phrase they used.

Nico: Yeah. So, how do we look at these noncommercial – because you say we need to allow a sphere of influence for these private associations. Is the concern for you when you bestow a government benefit upon them?

Carlos: Yeah. I think that’s part of it. And the way that I come out on the Christian Legal Society case in the book is that I agree with the court as a constitutional matter that it did not violate the First Amendment to essentially tell the student group that in order to receive funding from the law school that it had to admit every law school student who wanted to be a member of it.

I don’t think that rises to the level of a constitutional violation in part because we are talking about a subsidy, in part because we’re not really then at the end of the day, and this is different from the Boy Scouts case, we’re not really forcing, mandating, right, that the group, in order to continue its existence without legal liability, that it has to admit members that it doesn’t want to admit.

So, I don’t think that at the end of the day we have a constitutional violation there, but as I explained in the book, if I had been running that law school and it would’ve been up to me at the time, I would’ve granted that the exemption. And that’s from an LGBT rights advocate perspective, that’s a somewhat controversial position to take, but one of the things that I’m trying to do with this book is to remind LGBT rights supporters the crucial important role that the First Amendment played back in the days would LGBT individuals had no legal rights in this country of any kind whatsoever, and now that to some extent in some parts of the country more than others, the political dynamic has changed, right, with those in favor of LGBT rights enjoying a form of political power that they lacked decades ago.

Know the history, knowing the role that the First Amendment played in the early history, I think should be part of what we should keep in mind when we’re trying to make these difficult decisions, right, between how do we accommodate liberty on the one hand while still aspiring to attain basic equality objectives.

Nico: Yeah. The idea being you use the First Amendment to open the door, now don’t close the door behind you.

Carlos: Right. Right.

Nico: I get the sense culturally that younger generations don’t appreciate the history of the First Amendment’s role in securing rights for women, rights for sexual minorities, rights for racial minorities. And is that your sense too?

Carlos: That is my sense. I had an LGBT student a couple of years ago. I teach a class on the First Amendment here at Rutgers, and the student said to me at the end of the semester, he said Professor Ball, I feel like I understand the First Amendment now, but I don’t like the First Amendment.

And in many ways coming from a young LGBT person today when most of the contemporary disputes involving the intersection of LGBT rights in the First Amendment are about how the First Amendment limits the ability to attain LGBT rights equality objectives, I can understand where this young person is coming from, because the First Amendment is for the most part being used primarily by opponents of LGBT rights.

And so, yes, I think it is important to remind those of us who are a little bit older but also to in many cases educate those who are a little bit younger that again this didn’t start in 2015, right? It didn’t start with the Baker in Oregon who did not want to bake a cake to a same-sex couple, right?

It started much earlier than that. And if we can view the current contentious issues within that broader historical framework, I think we can all learn from that. Both those who oppose LGBT rights and who I think are calling for religious exemptions and other forms of exemptions based on the First Amendment that, in my view, are too broad, but also I think LGBT rights proponents where things sometimes are not sufficiently attuned to the liberty implications of the government doing what they think the government should be doing, which is to aggressively promote LGBT equality.

Nico: In reading your book, it seems to me that if you wanted to, you could use as a through line or as a spine, former Justice Anthony Kennedy and his jurisprudence as kind of a way to examine all the various threats you look at, because he wrote three of the most important decisions protecting LGBT rights the court has ever issued in Lawrence v. Texas striking down sodomy laws and Windsor v. United States striking down the Defense Of Marriage Act, and of course in Obergefell, but he also in trying to secure LGBT rights took very seriously these religious liberty concerns, and this was part of my question earlier, he was the fifth vote, to the extent that you can decide who is the fifth vote and who is not the fifth vote, he was the fifth vote, and Hobby-Lobbying and the Masterpiece Cake case, I mean he sent it back down, because what he saw was religious discrimination in what was at the Colorado Civil Rights Commission.

So, how do we unpack Justice Anthony Kennedy, his role and what he can say about this liberty versus equality debate?

Carlos: Yeah. I mean there’s no question about it that Justice Kennedy probably mostly because of the ideological and legal positions of the justices who just happened to have been on the court at the same time that he was, you know, played that instrumental role he seemed to be sort of in the middle of a lot of these cases.

And in some ways, he was – I have good things to say about Justice Kennedy’s jurisprudence. I have some critical things to say about it. The incrementalism I think of Justice Kennedy generally I think was a positive thing, right? I mean when he writes Romer versus Evans, which is the first of these big LGBT cases was decided in 1996 striking down the constitutionality of a Colorado constitutional amendment that prohibited keep people from being protected by antidiscrimination laws, right?

Everybody else can be protected, but LGBT people cannot. That case in 1996 is decided at the same time that same-sex marriage all of a sudden seemingly out of nowhere takes over the national debate over LGBT rights. And so, everybody was thinking about same-sex marriage when that case went up to the Supreme Court.

And Justice Kennedy wrote an important opinion from an LGBT rights perspective but a relatively limited one that could not be easily transferred to either sodomy laws or to same-sex marriage, right?

Seven years go by between Romer and Lawrence, the sodomy case, and then another 12 or 13 years go by before same-sex marriage.

Nico: Before we get onto those though, do you think he could’ve written a more expansive decision and gotten the votes?

Carlos: Yeah. I don’t know. I mean I don’t know. Maybe not. Right?

Nico: Yeah.

Carlos: Maybe not. Because Bowers versus Hardwick had been decided only 10 years before, and I don’t know. Maybe he doesn’t get the [talking over] [00:54:26].

Nico: And I ask that as a way of understanding where his head’s at versus what he needed to do in order to get the votes on that.

Carlos: Yeah. And I think – yeah.

Nico: That narrow issue.

Carlos: Yes. And I think – and here’s the more critical part of my understanding of Justice Kennedy’s jurisprudence, which sort of goes beyond LGBT rights issues. Two points of criticism. One, he was not the clearest judicial author when it came to explaining exactly as a doctrinal matter why he was deciding the cases in which he – I mean his writing philosophically and rhetorically can be quite powerful, but as a matter of doctrine, there are criticisms that can be made.

And a second point of criticism that I have against Justice Kennedy, and this goes beyond LGBT rights issues, in that he was very often the fifth vote, but he was very often the fifth vote to strike down laws, right? He was a very aggressive with his judicial review. And that’s why conservatives love to him on some issues because he was willing to strike down the statutes that they didn’t like, and liberals loved him sometimes because he was willing to strike down statutes that they didn’t like.

At the end of the day, there were a lot of statutes that were struck down by Justice Kennedy, and –

Nico: He seemed libertarian in his –

Carlos: Yeah.

Nico: – although you get –

Carlos: Libertarian yes, I suppose so, but with a very robust understanding of the judicial role, and the criticism can be made a limited understanding of the importance of allowing legislatures to decide some of these issues.

Now, when it comes to LGBT rights I agree with him as a policy matter and as a constitutional matter, but anyway, until –

Nico: You’re talking about the incrementalism?

Carlos: Yeah. So, the incrementalism is there. The incrementalism I think looking back in hindsight was helpful. You know, this –

Nico: It’d help bring public opinion along, although that didn’t do much service to the people in the early 2000s, for example, who couldn’t get married.

Carlos: And that’s the challenge, right?

Nico: Hm-mm.

Carlos: Because when you are convinced that there’s a constitutional violation going on, it’s very difficult to be persuaded of the idea okay yes, there is, but you have to wait. But the reality is as a practical matter in the real world is that very often you have to wait. This happened in a relatively short period of time, however.

Between like in 1986, the Supreme Court says essentially gave people have no constitutional rights other than the First Amendment rights that had already been decided. You know, 10, 20, 15 years later, LGBT people are constitutionally in a very different position. So, it’s incrementalism with some speed I think in hindsight.

Nico: So, we’re almost at an hour here. By way of wrapping up, it’s almost two years since your book came out or two years since the book was written. What has changed?

It seems to me as though these rights are not only enshrined in law, but public opinion is firmly on the side of gay communities. What fights still remain in your mind, and what First Amendment questions remain unanswered, if any?

Carlos: Well, I think the big First Amendment question that remains unanswered is the question that Justice Kennedy –

Nico: Kicked the –

Carlos: – and the other members – yeah. They kicked the can down the road. And I think constitutionally, that is the biggest question that remains, and I must say I’m concerned. I’m concerned that a majority of the Supreme Court may hold in the next couple of years that commercial actors, those who sell products in the commercial marketplace and make their products available to the general public, may have a constitutional right to be exempted from the application of antidiscrimination laws, and I think that that’ll be very unfortunate, and I think that would represent a real moving backwards when it comes to civil rights.

Nico: Do you think Chief Justice John Roberts would join a majority in striking down some of those antidiscrimination statutes, because he seems to me as not – he doesn’t want to be the deciding vote in a cultural war it almost seems.

Carlos: Yeah. I mean if we’re just sort of counting the votes and trying to read the tea leaves, that I think is from an LGBT rights activist’s perspective, and more broadly from a civil rights activist’s perspective, that is the hope, right?

Nico: Hm-mm.

Carlos: And he did – you know, he did –

Nico: And there was also a question about Gorsuch too I might think.

Carlos: Yes. Though Roberts did join in full and did not write separately in Masterpiece, and Kennedy made very clear, and you made this point earlier in terms of balancing the liberty and the equality considerations, he made very clear the real harm to LGBT people that are – that comes from discrimination, and the problem with enforcing exemptions for one merchant, you know, how do you keep that cavent so that the exception doesn’t end up swallowing the antidiscrimination rule.

And Roberts joined that in full, didn’t write separately, so if one is looking for some glimmer of hope, but I think this issue is going to come back to the court.

So, I think that’s the big question that remains unresolved. Interestingly enough, I don’t know what you think, but I think culturally the backlash more broadly speaking, once we go beyond these particular legal controversies, even the whole, you know, that clerk in Kentucky who was refusing to issue the marriage licenses right after Obergefell, because she had a religious objection to same-sex marriage. I don’t know if you saw, but she was not reelected to her clerk position by her, what I’m assuming is a fairly rural district Kentucky community.

And so, that makes me think that maybe we’re over the hump there culturally as well about again yes, there are individuals that in their private lives and in their houses of worship and in their private organizations should be as free as they want to be to have whatever views they want to have about sexual minorities, but it’s very different once again once you become a representative of the government, once you are a commercial actor making your widgets available to anybody who comes through the door.

And so, I’m hopeful that the consensus that has arisen in the context of race and in the context of gender, that there is in fact no constitutional right by commercial actors and by government employees to not discriminate when they’re legally obligated to do so that the LGBT cases will fall under that historical, long recognized, most people agree, reasonable way of compromising between equality and liberty.

Nico: But do you think on the First Amendment question that the LGBT community will come around to recognizing the role that the First Amendment played historically, or do you think we’ll continue to see what is perceived to be a decreasing appreciation for the role of the First Amendment in society generally?

Carlos: I’ve noticed already a difference. I don’t know about you, and you’re around college campuses on these issues. I’m on a college campus as well, but I’m not dealing directly on a board – yeah –

Nico: You’re on these issues.

Carlos: – as you are, but my sense is that the new administration in Washington has made a big difference, and –

Nico: Especially in the press freedom 01:02:20.

Carlos: Right. And I think this happens with environmentalists, it happens with civil rights activists, etc., a sort of, you know, when there’s a Democrat in office at the national level, there’s one set of concerns and one set of priorities, and then the switch flips.

And so, I don’t see young LGBT activists taking the First Amendment for granted or seeing the First Amendment only as an impediment to the attainment of LGBT equality in the same way that I was just three or four years ago. So, I don’t know if that answers your question.

Nico: Yeah. It’s hard to say whether I’m an optimist or pessimist on that side. I mean you see the Supreme Court talk about First Amendment Lochnerism or using the First Amendment as a weapon rather than a shield, and you see dissenting letters within the ACLU, for example, when it takes up the Charlottesville case, for example.

So, it’s hard to say, and I don’t know what the intersection is with LGBT rights, but I believe that dissenter at the ACLU was part of the LGBT project. So, I mean the tensions will always be there of course, but I fear that the history is lost, and that’s why loved your book so much.

Carlos: Well, thank you very much. And that’s really again, that was the main objective behind the book. I don’t want this history to be forgotten, because I think this history can really speak to us today and help us navigate these issues that remain, and maybe forever they will be contentious.

Nico: Well, Professor, thank you again for coming on the show, and I hope everyone will check out your book.

Carlos: Thank you very much, Nico.