The Sincerity Problem in Expressive Association Cases--Or Why the SCOTUS Should Deny Cert in Elane Photography

By Michael Dorf

My latest Verdict column discusses recent controversies regarding claims for exceptions from general laws, comparing and contrasting claims for exceptions grounded in four freedoms that receive protection in the First Amendment (and other sources of law): religion; speech; press; and association. Here I want to discuss a point of contact that I do not address in the column--what I'll call the sincerity problem.

In legal regimes that entitle religiously-scrupled persons to exceptions from general laws--like the one created by the federal Religious Freedom Restoration Act (RFRA) and similar state constitutional or statutory provisions--there arises a threshold question: Does the claimant have a sincere religious belief? That matters because the entitlement to an exception turns on the religious character of an obligation. If Jim can't work at his government job on Sundays because he goes to church on Sundays, that will trigger protection under a RFRA-style regime, but if Joe can't work at the same job on Sundays because that is the day when he watches sports on television, Joe receives no such protection.

But what if Joe says that his religion requires him to watch sports on tv on Sundays?  Courts will not ask whether such a religious belief--here, the religious belief that God has commanded people (or perhaps has commanded only Joe) to watch sports on tv on Sundays--is true.  Secular courts do not pass judgment on the question of whether a religious belief is true or false.  Nonetheless, the self-serving nature of the belief, coupled with the fact that it is idiosyncratic, will likely lead a court to conclude that Joe does not in fact sincerely believe that God has commanded him to watch tv sports on Sundays.  In theory one can imagine people concocting self-serving religious beliefs and then trying to persuade themsevles to hold such beliefs, but in fact the few efforts along these lines routinely fail, and so almost no one bothers.  (My favorite case is United States v. Kuch, in which the district court rejected as insincere the claimed religious belief that the defendant was obligated to smoke pot. I discussed it at some length here, drawing connections to Festivus.)

Now let's see how these principles apply to expressive association.  As a general matter, federal constitutional free speech doctrine parallels federal constitutional free exercise doctrine: That is, laws that do not target speech, but have the effect of burdening speech in particular cases, do not produce exceptions for speakers.  The leading case here is Arcara v. Cloud Books.  Moreover, there is no EFRA (Expressive Freedom Restoration Act) that requires that general laws be subject to strict scrutiny when they incidentally infringe speech. Thus, it is something of an unexplained mystery why the Supreme Court sometimes treats general anti-discrimination laws as subject to strict scrutiny when they happen to be applied to expressive association--as in Hurley v. Irish-American Gay, Lesbian and Bisexual Group and Boy Scouts of America v. Dale.  Perhaps the Justices think that anti-discrimination laws are never neutral because they always target association, but that's not a sufficient explanation, because the Constitution doesn't protect a general right of association: it protects a right to (and a right not to) expressive association and (not relevant here) a right to intimate association.

In any event, despite not being well justified, the Court's case law sometimes does subject general anti-discrimination law to scrutiny when it bumps up against expressive association. Exactly when that occurs is uncertain.  In Elane Photography v. Willock, the New Mexico Supreme Court read the circumstances in which expressive association exceptions will be granted to anti-discrimination laws fairly narrowly.  The Supreme Court will soon decide whether to grant cert in that case. Understandably, the cert petition relies heavily on Hurley and Boy Scouts, but the NM Supreme Court read those cases as largely inapposite because they did not involve the application of anti-discrimination laws to commercial enterprises, and the opp cert draws the same distinction.

And for good reason. Suppose that the Court grants cert in Elane Photography and holds that commercial enterprises have a right of expressive association to exceptions from anti-discrimination (and other) laws. As in the religion cases under RFRA-like regimes, there is a threshold question of sincerity, but unlike in the religion cases, there is no further requirement that the sincerely held belief be distinctively religious. The absence of that additional qualifier makes Elane Photography a bomb that holds the potential to blow up anti-discrimination law.

To see just how reactionary the position of the Elane Photography petitioner is, consider a comparison. Even under the expanded version of the Arizona RFRA that Governor Jan Brewer vetoed late last month, the owner of a strip club could not keep out female customers unless he could show that he had a distinctly religious objection to permitting women into the club--a task that would seem difficult, in light of the fact that, you know, he owns a strip club. But if the petitioner in Elane Photography were to prevail, then all that the owner of the strip club would have to show is that he doesn't agree with the message conveyed by admitting women to his club.  Indeed, under the view advanced by the Elane Photography petitioner, the racist owner of a restaurant would be presumptively entitled to an exception from the obligation to maintain racially integrated facilities--so long as he was sincere in his belief that he disagreed with the message conveyed by racial integration. And, as a racist, he almost certainly would be sincere in that belief.  The core point is that the Elane Photography petitioner has staked out a position considerably to the right of the position taken by the Arizona legislature that was itself too far to the right even for Jan Brewer.

Can Elane Photography win on narrower grounds? The Court might distinguish between expressive activities like photography and ostensibly non-expressive activities that might run afoul of anti-discrimination law. Thus, Professors Volokh and Carpenter, as well as the Cato Institute, argue in their amicus brief that a ruling for Elane Photography would not entitle "caterers, hotels, and limousine companies" to violate anti-discrimination law because catering, hoteling and driving are not expressive activities.  However, they notably do not discuss intermediate categories like flower-arranging and baking, nor, more importantly, do they come to grips with the fact that scouting is not even arguably an inherently expressive activity; yet the Boy Scouts prevailed in the Supreme Court on the theory that association itself sends a message. (Their brief only cites the Boy Scouts case once, in a footnote, for an unrelated proposition.)

Moreover, the Court in Boy Scouts was at pains to allow the Boy Scouts to define themselves by their own message, without any inquiry into the inherent nature of the association, expressive or otherwise. Here is CJ Rehnquist for the Court in Boy Scouts:
associations do not have to associate for the “purpose” of disseminating a certain message in order to be entitled to the protections of the First Amendment. An association must merely engage in expressive activity that could be impaired in order to be entitled to protection. 
Let's see what happens when we substitute "business" for "association":
[Businesses] do not have to [do business] for the “purpose” of disseminating a certain message in order to be entitled to the protections of the First Amendment. A[ business] must merely engage in expressive activity that could be impaired in order to be entitled to protection. 
Thus, accepting the Boy Scouts logic in a commercial case would allow any business to throw in a racist, sexist, or homophobic message -- such as a sign professing white supremacy on the entrance to the hotel or on the side of the limousine -- and it will generate strict scrutiny of anti-discrmination law as applied to it.

The Cato/Volokh/Carpenter brief also attempts to cabin its argument by noting that exceptions to the public accommodations provisions of anti-discrimination laws do less to undermine such laws than do exceptions to the employment provisions of anti-discrimination laws. I think that's probably right, but there is nothing in their argument that would admit a principled distinction between public accommodations and employment. Indeed, the employment relation creates a greater impression of endorsement by the employer than does the mere willingness to serve customers, so by the logic of the Elane Photography petitioner, there ought to be a stronger case for exceptions from employment restrictions, not a weaker one. And in fact, Boy Scouts itself was the non-profit version of an employment case: The Boy Scouts of America objected to accepting respondent Dale as a troop leader.

Accordingly, despite the efforts of Cato and Professors Volokh and Carpenter, if the SCOTUS were to grant cert and rule for Elane Photography, it would open up a pandora's box of businesses seeking exemptions from anti-discrimination law. That box should remain tightly closed.

Postscript: My colleague Steve Shiffrin and I filed an amicus brief on behalf of the state in the New Mexico Supreme Court in Elane Photography.  The brief chiefly made arguments similar to those I have set forth above.  We then argued that, even if the court were to treat the application of the anti-discrimination statute to a commercial business as raising free speech concerns comparable to those at issue in Hurley and Boy Scouts, Elane Photography should nonetheless lose on the ground that photographing a same-sex ceremony would not actually be inconsistent with the beliefs or views its owners had articulated.