Thanks to Loyola for Another Great Con Law Colloquium
Although a contracts prof, as I do most years, I attended the annual Loyola Chicago Constitutional Law Colloquium last weekend. It’s always a great opportunity to see friends from other law schools and to hear interesting presentations about parts of constitutional law that I thought I understood but haven’t thought about to the extent of the presenters. It is a weekend of grand theories, close readings, historical explorations, and this year, a lot of gallows humor and grim prognostications. It was also the occasion for a mini-Valpo Law reunion for me, Rob Knowles (Baltimore, below middle), and Geoff Heeren (Idaho, below right), with a conference call with our erstwhile colleague Joellen Lind Satterlee (Loyola Chicago), who is recuperating from back surgery.
My argument is that each of these cases involved contracts, but the Court ignored the contracts in every decision. Following Jamal Greene’s rights-mediation approach, I do not suggest that the cases are necessarily wrongly decided, but that the court should consider and weigh contracts rights and interests in cases where parties have entered into contracts or, in Mahanoy, where the cheerleader-plaintiff entered into an undertaking not to speak ill of her school of or cheerleading on social media. That case is the subject of my first law review article in this series, Our Dumb First Amendment: Fuck Cheer. I hope there will be more to come.
In Austin, the majority granted a partial stay of an order enjoining the Navy from sidelining Navy Seals who had refused COVID vaccines on religious grounds. There was no majority opinion, but neither Justice Kavanaugh’s concurrence nor the dissenting opinion made any mention of the contract that the plaintiff Seals had signed when they joined the service. In fact, the dissent highlighted the shabby treatment to which the Seals were subjected despite having “volunteered” for service. But I think their voluntary service cuts the other way in this instance. No doubt, upon entering the service, the Seals voluntarily relinquished certain rights and expectations. Vaccinations are routine in the armed forces. These very Seals were no doubt vaccinated many times prior to their decision to resist in this case. Those facts ought to matter. When we absolutize certain rights and discount or ignore entirely contractual obligations, we invite people to treat every burden on the privileged rights as constitutionally significant. As Justice Gorsuch noted in a different contexts, we should not as judges ignore things that we know to be true as citizens. Not all burdens on free exercise of religion are equal. Courts may not well-positioned to sort them out, but the alternative is to turn religion into a trump card before which competing rights and interests must bow.
Fulton and 303 Creative will pair nicely once an opinion is rendered in the latter. In Fulton the Court ordered the City of Philadelphia to renew its contractual relationship with Catholic Social Services (CSS) notwithstanding CSS’s refusal to comply with the city’s non-discrimination policy. In 303 Creative v. Elenis, the Court will almost certainly uphold the right of a for-profit corporation to discriminate against same-sex couples on the ground that the government cannot compel corporate speech. Putting the two case together, the Court will have created a world in which some corporations can be compelled to contract with entities about whose rights the Court cares, but natural persons cannot compel other corporations into contracts that might burden those same sacrosanct rights. Even in our post-Lochner Era, one would think there would be considerable discomfort at the prospect of federal courts ordering parties to enter or maintain contracts against their will, as the Court did in Fulton. If the Court could order Philadelphia to contract with CSS, it is not clear why it could not tell 303 Creative to either get out of the business of wedding web-hosting or engage in such transactions on a non-discriminatory basis, as Hila Keren suggests here. CSS was engaged in a public service arguably central to its mission; it is not clear on what legal basis a business should be able to claim a constitutionally protected interest in providing web-hosting services for weddings on a discriminatory basis.
