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- Title
SPEECH, ASSOCIATION, CONSCIENCE, AND THE FIRST AMENDMENT'S ORIENTATION.
- Authors
STRASSER, MARK
- Abstract
More and more states are permitting same-sex unions to be celebrated, which will likely result in an increase in the number of individuals claiming that they are precluded by conscience from providing goods or services to such families. While the First Amendment to the United States Constitution provides great protection to religious belief, it provides much less protection to conscience-based conduct in violation of nondiscrimination statutes, especially when such refusals of conscience are in a commercial context. This Article discusses a variety of cases that are often thought to implicate matters of conscience--compelled speech, symbolic conduct, conscientious objection--as well as several unemployment benefits and right of association cases. While these cases might be interpreted in a number of ways, they nonetheless seem to provide relatively little protection to conscience-based refusals to engage in allegedly symbolic activities that themselves might be interpreted in a number of ways. After providing an analysis of existing constitutional protections, the Article focuses on Elane Photography v. Willock, explaining how the case should be decided in light of existing constitutional guarantees as they have been explained by the Court. The Article concludes that were the Court to ignore the current jurisprudence and find such conscience- based actions protected under the Federal Constitution, the Court would thereby create an exception that was difficult if not impossible to cabin, which would lead to a variety of regrettable consequences.
- Subjects
UNITED States; FREEDOM of speech; LIBERTY of conscience; UNITED States. Constitution. 1st Amendment; SAME-sex marriage; FREEDOM of association lawsuits; STATE statutes (United States); ELANE Photography LLC; ACTIONS &; defenses (Law); SAME-sex marriage laws; LAW
- Publication
Denver University Law Review, 2014, Vol 91, Issue 2, p495
- ISSN
0883-9409
- Publication type
Article