This article identifies a previously-ignored pattern of Supreme Court decisions that privilege one competing constitutional value, either speech or equality, and subordinate the other—with little or no reasoning explaining its choice. In adjudicating such cases, including two cases decided last term, the Supreme Court has steadfastly treated these disputes as either a basic equality case or a simple speech case. This dichotomy is a problem because once the Court places a case within either a speech or equality paradigm, it is constrained by certain rigid analytical presumptions. These presumptions threaten to stunt the analysis and to deprive the Court of the flexibility necessary to reconcile the competing constitutional commitments. Consequently, a string of Supreme Court cases have privileged First Amendment interests of speech or association over equality interests. At times, the Court has not even recognized the equality dimensions of these cases in part because the equality interests were embedded in state antidiscrimination laws.
Analyzing a number of key cases including the Boy Scouts and burning cross cases, I show that, contrary to the Court’s reductive assumptions, these cases are fundamentally about speech and equality. Rather than artificially force a case into a speech or equality box, my approach would fuse speech and equality doctrine. After setting forth a general framework to speech-equality intersections, this Article reconstructs the analysis of Boy Scouts of America v. Dale and R.A.V. v. City of St. Paul to show how a more balanced approach would produce a finer-grained analysis reflective of a holistic conception of the Constitution.
Date of Authorship for this Version
Equality, Speech, First Amendment, Fourteenth Amendment, Antidiscrimination, Supreme Court
Robinson, Russell K., "Boy Scouts & Burning Crosses: Bringing Balance to the Court’s Lopsided Approach to the Intersection of Equality and Speech" (2004). Fordham Law Faculty Colloquium Papers. Paper 6.