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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. In the modern Civil Rights Era, the social and legal climate has become increasingly intolerant of bullying, embraced liberal sexual and gender norms, and sought to institute formal equality for formerly disfavored groups. The conservative movement has responded in part by seeking refuge from progressive change in constitutional jurisprudence, articulating theories of both the First and Fourteenth Amendments to effectively protect the status quo. Because of a receptive Supreme Court, dominant conceptions of both equal protection and free speech are informed today by libertarian ideology, reflecting a commitment to limited government oversight and regulation. A libertarian view of the Constitution, however, ensures that meaningful liberty and equality exist not for everyone but only for some. To create a more equitable society, constitutional interpretation must more adequately balance libertarian interests in the exercise of individual rights--like free speech--with the need for governmental action to promote the public good and address group-based harms. This Article draws from the field of critical race theory to advocate for an antisubordination approach in mediating competing claims of equality and liberty. Unlike a libertarian free speech jurisprudence that treats all speakers and viewpoints as equally worthy of constitutional respect, an antisubordination approach to free speech is attentive to historical and contemporary modes of group-based oppression. Simply put, if the triumph of a free speech claim would enforce a status hierarchy that positions historically marginalized groups as inferior, that free speech claim should fail. The need to reconceptualize liberty and equality came into sharp relief in the Supreme Court's 2020 decision in Bostock v. Clayton County. The Bostock Court held that Title VII prohibits discrimination against gay and transgender employees, but the majority concluded by expressing concern for religious and conservative dissenters. The Court suggested that constitutional and statutory principles of religious freedom and free speech might override antidiscrimination commands in appropriate cases. The jurisprudence that emerges from these developing cases will help determine the scope of equality, the breadth of First Amendment liberties, and the Constitution's role in addressing inequity for all marginalized groups. [ABSTRACT FROM AUTHOR]

Abstract: In Obergefell v. Hodges, the Supreme Court held that same-sex marriage bans violate the Equal Protection Clause for two primary reasons. First, they subordinate; they send the message that [...]

The Supreme Court shocked the world at the end of its 2021-22 term by issuing landmark decisions ending constitutional protection for abortion rights, expanding gun rights, and weakening what remained of the wall between church and state. One thread uniting these cases that captured the public's attention is the rhetoric common of originalism--a backwards-looking theory of constitutional interpretation focused on founding-era meaning and intent. This Article identifies the discriminatory intent doctrine as another powerful tool the Court is using to protect the social norms and hierarchies of a bygone era, and to build a conservative Constitution. Discriminatory intent rose to prominence during the Burger and Rehnquist Courts through the development of rules requiring intent, rigidly defining intent, and limiting the evidence relevant to prove intent. Application of these rules in equal protection claims often shielded legal structures from reproach that disadvantage women and people of color. By contrast, today's Court is revisiting and radically reinterpreting these rules in ways that favor conservative religious adherents in First Amendment claims. In Free Exercise Clause cases brought by conservative Christians challenging seemingly religiously neutral and generally applicable laws, the Court has credited allegations of discriminatory intent on thin evidentiary records. Additionally, the Court has crafted a new strict rule designed to prevent even the possibility that discriminatory intent could creep into future decision-making--even when no evidence of actual bias presently exists. Meanwhile, the Court in Establishment Clause claims has abandoned longstanding intent rules prohibiting favoritism or hostility towards religion; instead, the sole relevant question is now whether founding-era practices support the government's religious involvement. These emerging and conflicting roles for discriminatory intent in the Religion Clauses leave religious minorities and non-believers with diminished constitutional protection, while insulating the Christian right from perceived victimization by progressive forces who have sought to stem a global pandemic, promote reproductive rights, and prevent discrimination against LGBTQ individuals. [ABSTRACT FROM AUTHOR]

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. In the modern Civil Rights Era, the social and legal climate has become increasingly intolerant of bullying, embraced liberal sexual and gender norms, and sought to institute formal equality for formerly disfavored groups. The conservative movement has responded in part by seeking refuge from progressive change in constitutional jurisprudence, articulating theories of both the First and Fourteenth Amendments to effectively protect the status quo. Because of a receptive Supreme Court, dominant conceptions of both equal protection and free speech are informed today by libertarian ideology, reflecting a commitment to limited government oversight and regulation. A libertarian view of the Constitution, however, ensures that meaningful liberty and equality exist not for everyone but only for some. To create a more equitable society, constitutional interpretation must more adequately balance libertarian interests in the exercise of individual rights--like free speech--with the need for governmental action to promote the public good and address group-based harms. This Article draws from the field of critical race theory to advocate for an antisubordination approach in mediating competing claims of equality and liberty. Unlike a libertarian free speech jurisprudence that treats all speakers and viewpoints as equally worthy of constitutional respect, an antisubordination approach to free speech is attentive to historical and contemporary modes of group-based oppression. Simply put, if the triumph of a free speech claim would enforce a status hierarchy that positions historically marginalized groups as inferior, that free speech claim should fail. The need to reconceptualize liberty and equality came into sharp relief in the Supreme Court's 2020 decision in Bostock v. Clayton County. The Bostock Court held that Title VII prohibits discrimination against gay and transgender employees, but the majority concluded by expressing concern for religious and conservative dissenters. The Court suggested that constitutional and statutory principles of religious freedom and free speech might override antidiscrimination commands in appropriate cases. The jurisprudence that emerges from these developing cases will help determine the scope of equality, the breadth of First Amendment liberties, and the Constitution's role in addressing inequity for all marginalized groups. [ABSTRACT FROM AUTHOR]

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. In the modern Civil Rights Era, the social and legal climate has become increasingly intolerant of bullying, embraced liberal sexual and gender norms, and sought to institute formal equality for formerly disfavored groups. The conservative movement has responded in part by seeking refuge from progressive change in constitutional jurisprudence, articulating theories of both the First and Fourteenth Amendments to effectively protect the status quo. Because of a receptive Supreme Court, dominant conceptions of both equal protection and free speech are informed today by libertarian ideology, reflecting a commitment to limited government oversight and regulation. A libertarian view of the Constitution, however, ensures that meaningful liberty and equality exist not for everyone but only for some. To create a more equitable society, constitutional interpretation must more adequately balance libertarian interests in the exercise of individual rights--like free speech--with the need for governmental action to promote the public good and address group-based harms. This Article draws from the field of critical race theory to advocate for an antisubordination approach in mediating competing claims of equality and liberty. Unlike a libertarian free speech jurisprudence that treats all speakers and viewpoints as equally worthy of constitutional respect, an antisubordination approach to free speech is attentive to historical and contemporary modes of groupbased oppression. Simply put, if the triumph of a free speech claim would enforce a status hierarchy that positions historically marginalized groups as inferior, that free speech claim should fail. The need to reconceptualize liberty and equality came into sharp relief in the Supreme Court's 2020 decision in Bostock v. Clayton County. The Bostock Court held that Title VII prohibits discrimination against gay and transgender employees, but the majority concluded by expressing concern for religious and conservative dissenters. The Court suggested that constitutional and statutory principles of religious freedom and free speech might override antidiscrimination commands in appropriate cases. The jurisprudence that emerges from these developing cases will help determine the scope of equality, the breadth of First Amendment liberties, and the Constitution's role in addressing inequity for all marginalized groups. [ABSTRACT FROM AUTHOR]

In 2015, the U.S. Supreme Court in Obergefell v. Hodges settled a decades-long national debate over the legality of same-sex marriage. Since Obergefell, however, local and state legislatures in conservative and mostly rural states have proposed and passed hundreds of anti- LGBTQ bills. Obergefell may have ended the legal debate over same-sex marriage, but it did not resolve the cultural divide. Many rural Americans, especially in predominately white communities, feel that they are under attack. Judicial opinions and legislation protecting LGBTQ people from discrimination are serious threats to rural dwellers because they conflict with several core tenets of rural identity: community solidarity, selfreliance, and compliance with religiously informed gender and sexual norms. This conflict is amplified by the relative invisibility of gay and transgender people who live in rural areas, and the predominately urban media representations of gay and transgender people. In several respects, the conflict is merely perceived and is not real. It is at these junctures of perceived conflict that we can draw important lessons for bridging the cultural divide, thereby protecting LGBTQ people across geographic spaces. This Article examines the sources and modem manifestations of rural LGBTQ resentment to provide foundational insights for the ongoing fight to protect all vulnerable minorities. Pro-LGBTQ legislation and judicial opinions symbolize a changing America in which white rural inhabitants see their identities disappearing, devalued, and disrespected. The left, popularly represented in rural America as a group of urban elites, characterizes anti-LGBTQ views as bigoted, and many people in small towns feel victimized by this criticism. Drawing on a robust body of social science research, this Article suggests that these feelings of victimization lead to resentment when outside forces, like federal judges and state and big-city legislators, tell rural Americans how to act, think, and feel. Rural Americans resent "undeserving" minorities who have gained rights and recognition, in contrast to the identities of, and at the perceived expense of, white, straight, working-class prestige. They resent that liberal, largely urban outsiders are telling them that they must change who they are to accommodate people they perceive as unlike them. Opposing LGBTQ rights is thus one mechanism to protect and assert rural identity. It is important to unearth and pay attention to white rural anti-LGBTQ resentment in the post-Obergefell era because it is part of a larger force animating conservative politics across the United States. [ABSTRACT FROM AUTHOR]

What does it mean to discriminate because of sexual orientation? This legal question will increasingly arise as many states and municipalities enact laws that include sexual orientation as a protected trait. Without evidence of overt hostility towards or moral disapproval of gays as a group, plaintiffs may introduce evidence of sexual orientation stereotyping to make their case: i.e., evidence that an actor relied on group-based sexual orientation stereotypes in deciding to discriminate against an individual plaintiff. But how should courts determine whether the stereotyping relates to sexual orientation? It is important to answer this question for the litigants and judges who must address it in legal disputes, as well as for those who are working on the greater project of creating an intersectional and anti-essentialist approach to discrimination. To classify evidence as sexual orientation stereotyping in some ways defines categories like "gay" or "straight." When the law defines identity categories, it risks reinforcing regressive and narrow ideas about identities. Yet, like gender expression, sexual orientation expression can be highly individualistic. How courts approach stereotyping evidence thus determines both the contours of the protected trait and who is protected from discrimination. In determining when discrimination is "because of" sexual orientation, then, courts should avoid a one-size-fits-all approach. To illustrate the individualistic and expansive potential of sexual orientation as a protected trait, this Article discusses how lesbian, gay, and bisexual ("LGB") expression is contested and policed even within the queer community. It focuses on several tangible examples of LGB norm enforcement: masculine gay men who discriminate against effeminate gay men; discrimination stemming from respectability politics regarding how LGB people organize and structure their romantic and sexual lives; and discrimination at the intersections of sexual orientation and class, race, and geography. These internal divisions demonstrate not only the diverse meanings that attach to sexual orientation categories, but also which LGB people remain most susceptible to discrimination by straight and LGB people alike in an era of increasing tolerance and acceptance. [ABSTRACT FROM AUTHOR]

The article offers information on the history, benefits and scope of the sex stereotyping used as evidence by U.S. Judges in the cases of intentional in male and same-sex discrimination under the sexual harassment law.

Urban bias shapes social perceptions about sexual minorities. Predominant cultural narratives geographically situate sexual minorities in urban gay communities, dictate the contours of how to be a modern gay person, and urge sexual minorities to come out and assimilate into gay communities and culture. This Article contests the urban presumption commonly applied to all sexual minorities and focuses specifically on how it affects rural sexual minorities, who remain largely invisible in the public discourse about sexuality and equality. This Article makes two important contributions. First, by exposing urban bias, it contributes to a broader discussion about how law and society construct gay identity in exclusionary ways across race and class, and it expands that discussion to attend to place. The cultural prerogative to come out and into a gay community disregards social- and class-based circumstances that can necessitate alternative strategies for belonging, and it subordinates aspects of identity centered around families, religion, and place-based communities of origin. Urban bias erases the most marginalized sexual minorities' experiences from public discourse and places the burden on individuals to make positive change for themselves. Second, this Article draws attention to the legal dilemmas faced by a largely invisible population. Judges play a key role in perpetuating urban bias by internalizing stereotypes about gay people and gay identity and by explicitly approving the belief that sexual minorities do not belong in small towns. Acknowledging the existence of rural sexual minorities, understanding that various factors may render uprooting to an urban gay community undesirable or impossible, and appreciating that rurality brings distinct social experiences and legal needs are first steps in combatting discrimination against these vulnerable people. Rather than invoking characteristics common to rural life to make rural communities more hostile to residents who are sexual minorities, courts should account for those same characteristics in rural sexual minorities' claims to legal protections and access to justice. This Article offers suggestions for how judges should take rural sexual minorities into account to maximize the latter's ability to live comfortably in their homes. [ABSTRACT FROM AUTHOR]