This Article explores John Locke’s theory of religious liberty, which deeply influenced the adopt... more This Article explores John Locke’s theory of religious liberty, which deeply influenced the adoption of the First Amendment and the first state bills of rights. Locke sharply criticized the religious and political order of Restoration England—a regime in which the king claimed to hold absolute power by divine right and in which individuals were required by law to conform to the established church. In opposition to this regime, Locke developed a powerful theory of human beings as rational creatures who were entitled to think for themselves, to direct their own actions, and to pursue their own happiness within the bounds of the law of nature. He then used this view to give a new account of political and religious life. To promote their happiness in this world, rational individuals would agree to give up some of their natural freedom and to enter into a civil society for the protection of their natural rights or “civil interests” of life, liberty, and property. By contrast, Locke argue...
In Obergefell v. Hodges, the Supreme Court ruled that state bans on same-sex marriage violate the... more In Obergefell v. Hodges, the Supreme Court ruled that state bans on same-sex marriage violate the principles of liberty, equality, and dignity that are enshrined in the Fourteenth Amendment. In the wake of this decision, the battle over marriage equality has shifted to a new front. Religious traditionalists assert that the legalization of same-sex marriage endangers their religious liberty, and they seek protections for those who object to such unions on religious grounds. For example, they contend that florists, bakers, and others who provide wedding-related goods and services should not be compelled to follow state civil rights laws that would require them to serve same-sex couples in the same way as opposite-sex couples. This Article explores the conflict between religious liberty and civil rights in connection with same-sex marriage. The Article begins by looking at the worldviews that animate the opposing positions. The concerns of religious traditionalists go far beyond a fear...
In Obergefell v. Hodges, the Supreme Court ruled that state bans on same-sex marriage violate the... more In Obergefell v. Hodges, the Supreme Court ruled that state bans on same-sex marriage violate the principles of liberty, equality, and dignity that are enshrined in the Fourteenth Amendment. In the wake of this decision, the battle over marriage equality has shifted to a new front. Religious traditionalists assert that the legalization of same-sex marriage endangers their religious liberty, and they seek protections for those who object to such unions on religious grounds. For example, they contend that florists, bakers, and others who provide wedding-related goods and services should not be compelled to follow state civil rights laws that would require them to serve same-sex couples in the same way as opposite-sex couples. This Article explores the conflict between religious liberty and civil rights in connection with same-sex marriage. The Article begins by looking at the worldviews that animate the opposing posi
Conservative constitutional jurisprudence in the United States has an important libertarian dimen... more Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak can also be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have used the First Amendment in a libertarian manner to invalidate regulations that reflected liberal or progressive values. For example, these judges have rejected efforts to limit the role of money in election campaigns, struck down restrictions on hate speech and pornography, expanded protection for religious sp...
right was founded on a conception of the individual as a juridical person, a formal status that a... more right was founded on a conception of the individual as a juridical person, a formal status that abstracted from all particular characteristics. In morality, by contrast, the individual is conceived of as a "subject'-a human being who is aware of himself as a distinctive individual with his own particular identity, traits, and needs.211 Just as personality objectified itself in external things, the subjective will expresses itself through its actions.21 2 Action involves the transformation of external reality in conformity with the subject's own purpose or end.213 Initially, this end is given by the subject's particular needs, inclinations, and desires, the fulfillment of which constitutes his welfare or happiness. 14 The subject's right to act thus includes the right to pursue his own welfare.215 Through reflection, the subject further recognizes that other subjects have the same ends that he has; thus the welfare of others is also an essential end of moral acti...
Modern First Amendment jurisprudence is deeply paradoxical. On one hand, freedom of speech is sai... more Modern First Amendment jurisprudence is deeply paradoxical. On one hand, freedom of speech is said to promote fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to undermine these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition consists of two very different strands: a liberal humanist view that emphasizes the positive values promoted by free speech, and a darker vision that is rooted in the jurisprudence of Justice Oliver Wendell Holmes. Holmes understands free speech as part of a struggle for power between different social groups - a struggle that ultimately can be resolved only by force. After sketching the liberal humanist vie...
In Snyder v. Phelps, the Supreme Court ruled that the Westboro Baptist Church had a First Amendme... more In Snyder v. Phelps, the Supreme Court ruled that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq. This decision reinforces a view that has become increasingly dominant in First Amendment jurisprudence — the view that the state may not regulate public discourse to protect individuals from emotional or dignitary injury. This Article contends that this view not only sacrifices the law’s protections for individual personality but also undermines the normative foundations of public discourse itself. The Article then presents an alternative theory of the First Amendment which holds that the same values of human dignity and autonomy that support free speech also give rise to other fundamental rights. Thus, speakers should have a duty to respect the personality and rights of others. Drawing extensively on the record in Snyder as well as on other materials, the Article argues that Westboro’s funeral picketing should not receive...
This Article explores John Locke’s theory of religious liberty, which deeply influenced the adopt... more This Article explores John Locke’s theory of religious liberty, which deeply influenced the adoption of the First Amendment and the first state bills of rights. Locke sharply criticized the religious and political order of Restoration England—a regime in which the king claimed to hold absolute power by divine right and in which individuals were required by law to conform to the established church. In opposition to this regime, Locke developed a powerful theory of human beings as rational creatures who were entitled to think for themselves, to direct their own actions, and to pursue their own happiness within the bounds of the law of nature. He then used this view to give a new account of political and religious life. To promote their happiness in this world, rational individuals would agree to give up some of their natural freedom and to enter into a civil society for the protection of their natural rights or “civil interests” of life, liberty, and property. By contrast, Locke argue...
In Obergefell v. Hodges, the Supreme Court ruled that state bans on same-sex marriage violate the... more In Obergefell v. Hodges, the Supreme Court ruled that state bans on same-sex marriage violate the principles of liberty, equality, and dignity that are enshrined in the Fourteenth Amendment. In the wake of this decision, the battle over marriage equality has shifted to a new front. Religious traditionalists assert that the legalization of same-sex marriage endangers their religious liberty, and they seek protections for those who object to such unions on religious grounds. For example, they contend that florists, bakers, and others who provide wedding-related goods and services should not be compelled to follow state civil rights laws that would require them to serve same-sex couples in the same way as opposite-sex couples. This Article explores the conflict between religious liberty and civil rights in connection with same-sex marriage. The Article begins by looking at the worldviews that animate the opposing positions. The concerns of religious traditionalists go far beyond a fear...
In Obergefell v. Hodges, the Supreme Court ruled that state bans on same-sex marriage violate the... more In Obergefell v. Hodges, the Supreme Court ruled that state bans on same-sex marriage violate the principles of liberty, equality, and dignity that are enshrined in the Fourteenth Amendment. In the wake of this decision, the battle over marriage equality has shifted to a new front. Religious traditionalists assert that the legalization of same-sex marriage endangers their religious liberty, and they seek protections for those who object to such unions on religious grounds. For example, they contend that florists, bakers, and others who provide wedding-related goods and services should not be compelled to follow state civil rights laws that would require them to serve same-sex couples in the same way as opposite-sex couples. This Article explores the conflict between religious liberty and civil rights in connection with same-sex marriage. The Article begins by looking at the worldviews that animate the opposing posi
Conservative constitutional jurisprudence in the United States has an important libertarian dimen... more Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak can also be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have used the First Amendment in a libertarian manner to invalidate regulations that reflected liberal or progressive values. For example, these judges have rejected efforts to limit the role of money in election campaigns, struck down restrictions on hate speech and pornography, expanded protection for religious sp...
right was founded on a conception of the individual as a juridical person, a formal status that a... more right was founded on a conception of the individual as a juridical person, a formal status that abstracted from all particular characteristics. In morality, by contrast, the individual is conceived of as a "subject'-a human being who is aware of himself as a distinctive individual with his own particular identity, traits, and needs.211 Just as personality objectified itself in external things, the subjective will expresses itself through its actions.21 2 Action involves the transformation of external reality in conformity with the subject's own purpose or end.213 Initially, this end is given by the subject's particular needs, inclinations, and desires, the fulfillment of which constitutes his welfare or happiness. 14 The subject's right to act thus includes the right to pursue his own welfare.215 Through reflection, the subject further recognizes that other subjects have the same ends that he has; thus the welfare of others is also an essential end of moral acti...
Modern First Amendment jurisprudence is deeply paradoxical. On one hand, freedom of speech is sai... more Modern First Amendment jurisprudence is deeply paradoxical. On one hand, freedom of speech is said to promote fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to undermine these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition consists of two very different strands: a liberal humanist view that emphasizes the positive values promoted by free speech, and a darker vision that is rooted in the jurisprudence of Justice Oliver Wendell Holmes. Holmes understands free speech as part of a struggle for power between different social groups - a struggle that ultimately can be resolved only by force. After sketching the liberal humanist vie...
In Snyder v. Phelps, the Supreme Court ruled that the Westboro Baptist Church had a First Amendme... more In Snyder v. Phelps, the Supreme Court ruled that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq. This decision reinforces a view that has become increasingly dominant in First Amendment jurisprudence — the view that the state may not regulate public discourse to protect individuals from emotional or dignitary injury. This Article contends that this view not only sacrifices the law’s protections for individual personality but also undermines the normative foundations of public discourse itself. The Article then presents an alternative theory of the First Amendment which holds that the same values of human dignity and autonomy that support free speech also give rise to other fundamental rights. Thus, speakers should have a duty to respect the personality and rights of others. Drawing extensively on the record in Snyder as well as on other materials, the Article argues that Westboro’s funeral picketing should not receive...
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