The Equal Right to Exclude: Religious Speech and the Road to <em>303 Creative LLC v. Elenis</em>

This Article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation. It argues that cause lawyers for the New Christian Right cobbled together a right to exclude from a surprising doctrinal source: the egalitarian tendencies within the First Amendment. Using extensive original archival research, case materials, and little-known accounts of key figures, I reconstruct the New Christian Right’s legal strategy to obtain speech coverage for service denial. By strategically co-opting the progressive free speech legacy, innovative lawyers in the religious wing of the conservative legal movement convinced liberal jurists that they shared an approach to constitutional interpretation. The result was an argument that won the day in 303 Creative v. Elenis — that the government discriminates on the basis of speech content when it enforces public accommodations law in the sale of expressive products. This research has important implications for our understanding of the conservative legal movement, the meaning of First Amendment equality, and the future of anti-discrimination law. First, by going to the origins of conservative Evangelical cause lawyering, this Article reveals compromises, tensions, and contingencies in the formation of today’s conservative legal movement. Second, this novel history helps illuminate key moves in expressive conduct doctrine that resurfaced in 303 Creative. Third, the story provides important resources for understanding the 303 Creative decision and where expressive association doctrine is likely to go next.