The jurisprudence of colliding first amendment interests: From the dead end of neutrality to the open road of participation-enhancing review

Notre Dame Law Review

Volumn 83, Issue 1, 2007, Pages 185-264

  Magarian, Gregory P ^a  

^a VILLANOVA UNIVERSITY   (United States)

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EID: 38349185955     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (416)

1. See JOHN HART ELY, DEMOCRACY AND DISTRUST 101-04 (1980).
2. Cf., e.g., Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 809-10 (1985) (rejecting political groups' claims for access to a federal government fundraising drive based in part on the government's interest in choosing its preferred beneficiaries). In public forum cases, the government's incapacity to claim constitutional rights, including expressive rights, submerges any conflict between expressive interests.
3. Important conceptualizations and defenses of expressive access rights include JEROME A. BARRON, FREEDOM OF THE PRESS FOR WHOM? 73-74 (1973); OWEN M. FISS, LIBERALISM DIVIDED 154-58 (1996); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993); J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 DUKE L.J. 375, 394-404; see also ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM 24-28 (1960) (positing that "[w]hat is essential is that... everything worth saying shall be said" and that "[t]o that end... it may be assumed that each of the known authenticated points of view shall have... an assigned share of the time available").
4. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 400-01 (1969) (upholding a statutory provision for media access based on the public's interest in receiving information); Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 315-20 (1968) (finding constitutional right of access for expressive purposes to privately owned shopping center), abrogated by Hudgens v. NLRB, 424 U.S. 507 (1976); see also discussion infra notes 8-13, 49-56 and accompanying text (further discussing Logan Valley and Red Lion).
5. See Gregory P. Magadan, Market Triumphalism, Electoral Pathologies, and the Abiding Wisdom of First Amendment Access Rights, 35 HOFSTRA L. REV. 1373, 1388-1405 (2007) (describing and critically analyzing the libertarian critique of expressive access rights).
6. See id. at 1406-29 (describing and critically analyzing the regulatory reform critique of access rights).
7. Commentators on occasion have suggested that all free speech decisions implicate something like the expressive access problem. See Frederick Schauer, Uncoupling Free Speech, 92 COLUM. L. REV. 1321, 1322-34 (1992) (characterizing free speech cases in general as shifting costs from speakers to the public) ; R. George Wright, Why Free Speech Cases Are as Hard (and as Easy) as They Are, 68 TENN. L. REV. 335, 336-41 (2001) (arguing that most challenged speech regulations can be explained by reference to "free speech values"). Only expressive access cases, however, involve direct collisions of free speech interests, and my analysis will demonstrate that the Court has treated these cases as distinctively impervious to substantive First Amendment analysis.
8. 391 U.S. 308 (1968), abrogated by Hudgens v. NLRB, 424 U.S. 507 (1976).
9. Id. at 324-25.
10. See id. at 313-15, 319-20.
11. 326 U.S. 501 (1946).
12. See id. at 505-10.
13. See Logan Valley, 391 U.S. at 317-18 (emphasizing the functional similarities between a shopping center and the Marsh company town).
14. 407 U.S. 551 (1972).
15. Id. at 558, 569-70.
16. See id. at 561-67 (detailing the factual distinctions between Logan Valley and Marsh, on one hand, and Lloyd Corp., on the other).
17. See id. at 568 ("[T] his Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only.").
18. 424 U.S. 507 (1976).
19. See id. at 518-19.
20. Id. at 521.
21. 447 U.S. 74 (1980).
22. See id. at 77-79.
23. See supra notes 18-20 and accompanying text.
24. PruneYard, 447 U.S. at 85-87 & n.9.
25. See id. at 82-85.
26. See supra notes 17, 20 and accompanying text.
27. PruneYard, 447 U.S. at 87.
28. Labeling PruneYard as a case of judicial deference to elected officials is technically inaccurate, as the "regulation" in PruneYard was a state constitutional provision as authoritatively interpreted by the state supreme court. See id. at 78. No less than a statute or regulation, however, the object of the Court's deference was a majoritarian source of legal authority.
29. 475 U.S. 1 (1986).
30. See id. at 5-7, 20-21 (plurality opinion).
31. See id. at 8-9.
32. See id. at 9-12.
33. See id. at 12.
34. See id. at 23-24 (Marshall, J., concurring).
35. See id. at 20 (plurality opinion).
36. Id. at 13.
37. 515 U.S. 557 (1995).
38. Id. at 578-81.
39. See id. at 560-61. The opinion states that "the city allowed the Council to use the city's official seal, and provided printing services as well as direct funding" but somewhat cryptically notes that the organizers enjoyed those measures of direct support "[t]hrough 1992" - the year before the specific events that gave rise to the case. Id. at 561. The Court's implication that the parade enjoyed no direct government support in 1993 seems intended to buttress the parade's private status. But even aside from the Court's opaque account of the facts, a momentary strategic shedding of government support should hardly alleviate concerns about the government's role in a nominally private activity, especially when that government support has for many years strengthened the private activity's financial security and public legitimacy.
40. See id. at 562 (citing the trial court's factual findings).
41. See id. at 570.
42. Id. at 574.
43. See id. at 566.
44. The Hurley Court also explained its holding in terms of the parade organizers' First Amendment right to expressive association. See id. at 580-81. Subsequently, the Court in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), emphasized the same notion of expressive association to block the application of a state's nondiscrimination law to stop the Boy Scouts from expelling a gay scoutmaster. See id. at 647-61. Earlier expressive association cases had focused on protecting politically unpopular organizations from aggressive government demands for information. See, e.g., NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 309-10 (1964) (invoking the expressive association principle to bar Alabama from demanding a civil rights organization's membership list). The expressive association doctrine's shift from a means of protecting political outliers to a means of sustaining politically powerful groups' prerogatives parallels the Court's elevation of expressive autonomy interests and rejection of expressive access interests.
45. See Hurley, 515 U.S. at 574 ("Rather like a composer, the Council selects the expressive units of the parade from potential participants, and though the score may not produce a particularized message, each contingent's expression in the Council's eyes comports with what merits celebration on that day.").
46. See id. at 575 (asserting that the gay group's "participation would likely be perceived as having resulted from the Council's customary determination about a unit admitted to the parade").
47. See id. at 562 (citing the trial court's findings).
48. Also arguably fitting within this expressive property rubric is a line of decisions in which the Court has protected political parties' associational autonomy to restrict participation in primary elections against efforts to expand the class of eligible primary voters. Compare Clingman v. Beaver, 544 U.S. 581, 591-93 (2005) (rejecting voters' First Amendment challenge to a state's restriction on eligibility to vote in a primary election), with Cal. Democratic Party v. Jones, 530 U.S. 567, 586 (2000) (sustaining parties' First Amendment challenge to a state's expansion of eligibility to vote in a primary election). Reinforcing the autonomy focus of those decisions, which primarily benefit the two major political parties, is the Court's solicitude for state constraints on meaningful access to the political process for minor parties. See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351, 369-70 (1997) (rejecting a minor party's First Amendment challenge to a state's ban on fusion candidacies). For a discussion of party regulation cases prior to Clingman in the context of free speech theory, see Gregory P. Magarian, Regulating Political Parties Under a "Public Rights" First Amendment, 44 WM. & MARY L. REV. 1939, 2010-60 (2003).
49. 395 U.S. 367 (1969).
50. See id. at 369-71, 400-01.
51. Id. at 390.
52. Id. at 392.
53. See id. (upholding right of reply regulations as not "inconsistent with the First Amendment goal of producing an informed public capable of conducting its own affairs").
54. See id. at 390 ("It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.").
55. See supra notes 8-13 and accompanying text.
56. See Red Lion, 395 U.S. at 387-89 (discussing the scarcity rationale for broadcast regulation).
57. 412 U.S. 94 (1973).
58. See id. at 97-101.
59. Id. at 110.
60. See id. at 114-21 (plurality opinion).
61. Id. at 120-21.
62. See id. at 126-28 (majority opinion).
63. 418 U.S. 241 (1974).
64. See id. at 243-44, 258.
65. See id. at 254.
66. See id. at 258.
67. See id. at 248-51 (discussing the economic scarcity argument).
68. 453 U.S. 367 (1981).
69. See id. at 371-76.
70. Id. at 396.
71. Id.
72. See supra notes 49-56 and accompanying text.
73. See supra notes 57-62 and accompanying text.
74. See supra notes 63-67 and accompanying text.
75. 520 U.S. 180 (1997).
76. Id. at 185.
77. See Turner Broad. Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 637-40 (1994) (distinguishing Red Lion).
78. See id. at 643-52.
79. "At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence." Id. at 641.
80. See id. at 661-64.
81. Turner II, 520 U.S. at 189 (quoting Turner I, 512 U.S. at 662).
82. See id. at 197 ("Cable operators thus exercise 'control over most (if not all) of the television programming that is channeled into the subscriber's home [and] can thus silence the voice of competing speakers with a mere flick of the switch.'" (quoting Turner I, 512 U.S. at 656)).
83. The Turner II decision followed Turner I, which identified intermediate scrutiny as the appropriate standard of review and remanded the case for further proceedings. See Turner I, 512 U.S. at 661-64, 668.
84. See Turner II, 520 U.S. at 196 (asserting the heightened importance of deference to Congress "in cases, like this one, involving congressional judgments concerning regulatory schemes of inherent complexity and assessments about the likely interaction of industries undergoing rapid economic and technological change").
85. See id.
86. See e.g., Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985) ("[I]t should not be forgotten that the Framers intended copyright itself to be the engine of free expression.... [C]opyright supplies the economic incentive to create and disseminate ideas." (citing Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975); Mazer v. Stein, 347 U.S. 201, 209 (1954))).
87. See generally C. Edwin Baker, First Amendment Limits on Copyright, 55 VAND. L. REV. 891, 899-919 (2002) ("[T]he Copyright Clause might be read to [make copying] illegal .... In each case, however, the individual's expression constitutes speech ....").
88. Rebecca Tushnet makes the inverse analogy: copyright represents a government policy of regulating speech - infringing uses - that would otherwise threaten to drown out the speech copyright protects. See Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with Anti-Pornography Laws, Campaign Finance Reform, and Telecommunications Regulation, 42 B.C. L. REV. 1, 35-37 (2000). She thus compares copyright to regulations of broadcasting and political money, see id. at 60-67, which I associate with access interests, see supra Part I.A.2, infra Part I.A.4 . 89 U.S. CONST. art. I, § 8, cl. 8.
89. Harper, 471 U.S. at 542-43.
90. Id.
91. Id.
92. See id. at 555-56.
93. Id. at 557.
94. Id. at 558.
95. Id. at 559.
96. 537 U.S. 186 (2003).
97. Id. at 192-94.
98. See id.
99. See id. at 219 (citing Harper, 471 U.S. at 558).
100. See id. at 221.
101. See id. at 219-20.
102. See supra notes 21-48 and accompanying text.
103. See Harper, 471 U.S. at 555-60.
104. See Eldred, 537 U.S. at 222.
105. The Court's strong pull toward deference in the copyright area - the one expressive access context that entails a conflict between two distinct provisions of the constitutional text - anticipates the Court's ultimate arrival at an extremely deferential approach to the problem of religious accommodation, where textually grounded free exercise and nonestablishment interests collide. See infra Part I.B.3.a-b.
106. See,, e.g., J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 COLUM. L. REV. 609, 638-42 (1982); see also Colo. Republican Fed. Campaign Comm. v. FEC (Republican I), 518 U.S. 604, 649-50 (1996) (Stevens, J., dissenting) (noting that "[i]t is quite wrong to assume that the net effect of limits on contributions and expenditures... will be adverse to the interest in informed debate protected by the First Amendment," because those limits "tend to protect equal access to the political arena").
107. See infra notes 110-124 and accompanying text.
108. See infra notes 110-124 and accompanying text.
109. 424 U.S. 1 (1976) (per curiam).
110. Pub. L. No. 93-443, §§ 101(a)-(e), 202, 210, 88 Stat. 1263, 1263-67, 1257-76, 1288-89 (1974) (current version at 18 U.S.C. §§ 608, 609 (2000) and 2 U.S.C. §§ 422, 437 (2000 & Supp. 2004)).
111. See Buckley, 424 U.S. at 11.
112. See id. at 25-26.
113. Id. at 58-59.
114. See id. at 20-23.
115. See id. at 19-20.
116. See id. at 20-22.
117. Id. at 48-49.
118. See id. at 19-20.
119. See id. at 26-27 (accepting the anticorruption rationale for contribution limits).
120. See McConnell v. FEC, 540 U.S. 93, 224 (2003) (upholding federal limits on expenditures of "soft money" and certain expenditures for issue advertisements); Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 668-69 (1990) (upholding a ban on expenditures of corporate treasury funds in election campaigns).
121. See Randall v. Sorrell, 126 S. Ct. 2479, 2500 (2006) (plurality opinion).
122. See Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 386-88 (2000).
123. See, e.g., Burt Neuborne, One Dollar-One Vole: A Preface, to Debating Campaign Finance Reform, 37 WASHBURN L.J. 1, 29-30 (1997) (summarizing the arguments against the contribution-expenditure distinction).
124. 532 U.S. 514 (2001).
125. See id. at 517-19.
126. Id. at 518.
127. See id. at 533-35.
128. Id. at 534.
129. See id. at 534-35.
130. See id.
131. Justice Breyer's concurring opinion in Bartnicki provides a more extensive analysis than the majority's of the First Amendment collision and connects the case with First Amendment collisions in the media access and campaign finance settings. See id. at 536 (Breyer, J., concurring) (citing Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 402 (2000) (Breyer, J., concurring); Turner Board. Sys., Inc. v. FCC (Turner II), 520 U.S. 180, 227 (1997) (Breyer, J., concurring in part)). Justice Breyer, however, makes almost no effort to parse the underlying values at stake. Instead, he suggests a vaguely formulated balancing of a statute's "speech-restricting and speech-enhancing consequences," id. at 536, and then offers a balancing analysis that focuses on privacy expectations rather than speech interests, see id. at 538-40. Justice Breyer's approach to the case reinforces the sense that the decision lacks broader applicability. See id. at 540 (urging a narrow reading of the Court's decision). He also evokes PruneYard and CBS v. FCC by urging broad deference to legislative judgment. See id. at 541 ("[W]e should avoid adopting overly broad or rigid constitutional rules, which would unnecessarily restrict legislative flexibility."). Justice Breyer's earlier opinion in Turner II, while more explicit about the nature of the competing First Amendment interests at stake, takes a similarly imprecise and deferential approach to balancing those interests. See Turner II, 520 U.S. at 227-29 (Breyer, J., concurring in part).
132. The chronological scope of my discussion begins with Sherbert v. Verner, 374 U.S. 398 (1963), the first case to announce a robust doctrine of religious accommodation. See id. at 402-03. Earlier decisions that anticipated the accommodation issue include Prince v. Massachusetts, 321 U.S. 158, 169-71 (1944) (upholding the application against Jehovah's Witnesses of a state prohibition on child labor they considered a religious obligation); Cantwett v. Connecticut, 310 U.S. 296, 309-11 (1940) (striking down the conviction of a religious speaker for inciting a breach of the peace under free speech and free exercise principles); Pierce v. Society of Sisters, 268 U.S. 510, 534-36 (1925) (sustaining religious educators' challenge to a mandatory public education statute under due process and free exercise principles) ; and Reynolds v. United States, 98 U.S. 145, 161, 166-68 (1878) (upholding the application of a federal bigamy prohibition against a polygamous Mormon).
133. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543 (1993). Religious discrimination cases do not pit free exercise against Establishment Clause interests; if anything, government discrimination against one belief system may reflect favor for another system and thus violate both First Amendment principles.
134. The issue of religious accommodation has inspired a formidable body of academic literature. An excellent introduction is the nuanced debate between Ira C. Lupu, The Trouble with Accommodation, 60 GEO. WASH. L. REV. 743 (1992), and Michael W. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 GEO. WASH. L. REV. 685 (1992).
135. Elsewhere I have considered the issue of religious accommodation under a strongly separationist account of the Establishment Clause. See Gregory P. Magarian, How To Apply the Religious Freedom Restoration Act to Federal Law Without Violating the Constitution, 99 MICH. L. REV. 1903, 1970-72 (2001). The analysis in the present Article comports with any Establishment Clause theory that takes seriously the possibility that religious accommodations might undermine nonestablishment interests.
136. See infra Part I.B.3.a-b.
137. See infra Part I.B.3.a-b.
138. 374 U.S. 398 (1963).
139. See id. at 409-10.
140. See id. at 403.
141. See id. at 417-18 (Stewart, J., concurring).
142. 366 U.S. 599 (1961).
143. Id. at 608-09.
144. Id. at 606.
145. Id. at 607.
146. See Sherbert, 374 U.S. at 406-09.
147. See id. at 409.
148. Id. The Court had just as easily dismissed the argument that the Sunday closing law upheld in Braunfeld violated the Establishment Clause. See Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 592-98 (1961).
149. See Sherbert, 374 U.S. at 413-18 (Stewart, J., concurring).
150. 450 U.S. 707, 718 (1981).
151. 480 U.S. 136, 141-42 (1987).
152. 489 U.S. 829, 835 (1989).
153. See Hobbie, 480 U.S. at 144-45 (quoting Sherbert, 374 U.S. at 409); Thomas, 450 U.S. at 719-20 (same). The Hobbie Court elaborated slightly on the Sherbert Court's basis for ignoring Establishment Clause concerns, noting that "provision of unemployment benefits to religious observers does not single out a particular class of such persons for favorable treatment and thereby have the effect of implicitly endorsing a particular religious belief." Hobbie, 480 U.S. at 145 n.11.
154. 406 U.S. 205, 234-36 (1972).
155. Id. at 234-36.
156. See, e.g., id. at 210 (explaining Amish communities' objection to formal education in terms of "their devotion to a life in harmony with nature and the soil, as exemplified by the simple life of the early Christian era that continued in America during much of our early national life").
157. Id. at 220.
158. Id. 220-21.
159. Id. at 221.
160. See supra notes 14-17, 63-67 and accompanying text.
161. 471 U.S. 290 (1985).
162. See id. at 292-93.
163. See id. at 303-05.
164. The opinion's only Establishment Clause analysis was its rejection of the Foundation's claim that the Act's recordkeeping requirements would impermissibly entangle the government with religion. See id. at 305-06.
165. 476 U.S. 693 (1986).
166. See id. at 703-04 (plurality opinion).
167. 455 U.S. 252 (1982).
168. Cf. Wisconsin v. Yoder, 406 U.S. 205, 210, 234-36 (1972) (holding, after favorably describing the Amish's simple way of life, that a compulsory student attendance law violated the free exercise rights of Old Order Amish); supra notes 155-60 and accompanying text.
169. See Lee, 455 U.S. at 260-61.
170. Id. at 260.
171. 461 U.S. 574 (1983).
172. See id. at 612.
173. See id. at 603-04.
174. 485 U.S. 439 (1988).
175. See id. at 451-53.
176. See id. at 447-50.
177. See Bowen v. Roy, 476 U.S. 693, 699-700 (1986).
178. 482 U.S. 342 (1987).
179. See id. at 346-47, 349.
180. Id. at 349.
181. 475 U.S. 503 (1986).
182. See id. at 509-10.
183. Id. at 507.
184. Justice Stevens wrote separately in Goldman to emphasize "the interest in uniform treatment for the members of all religious faiths." Id. at 512 (Stevens, J., concurring). He maintained that, although a yarmulke may be an especially physically unobtrusive religious symbol, any attempt to make practical distinctions between accommodating a yarmulke and Rastafarian dreadlocks or a Sikh turban would impermissibly involve the government in religious distinctions. See id. at 512-13.
185. See supra notes 21-28, 68-71 and accompanying text.
186. 397 U.S. 664 (1970).
187. Id. at 666-67 (quoting N.Y. CONST. art. XVI, § 1).
188. Id. at 668-69.
189. Id. at 669.
190. Id. at 673.
191. Id.
192. See id. at 668 (discussing the historical foundations of the Establishment Clause).
193. Id. at 676-77.
194. See id. at 680.
195. See id. at 679-80.
196. 483 U.S. 327 (1987).
197. Id. at 338-40.
198. See id. at 339 n. 17.
199. See id. at 334 (employing the Walz analysis of the relationship between accommodation and the Free Exercise Clause).
200. Id. at 336.
201. See Walz v. Tax Comm'n, 397 U.S. 664, 676-77 (1970).
202. See Amos, 483 U.S. at 329-31.
203. See id. at 334-38.
204. See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (setting forth the Establishment Clause requirements that a challenged government action have a primarily secular purpose, have a principal effect that neither advances nor inhibits religion, and not excessively entangle government with religion).
205. Amos, 483 U.S. at 335.
206. See supra notes 21-28, 68-71 and accompanying text.
207. 472 U.S. 703 (1985).
208. See id. at 710-11.
209. See id. at 708-10.
210. See id. at 709-11.
211. See id. at 712 (O'Connor, J., concurring) (noting the nonapplicability of the Free Exercise Clause mandate to the accommodation of private employees).
212. See Sherbert v. Verner, 374 U.S. 398, 409-10 (1963); supra notes 139-50 and accompanying text.
213. The Court reached a similar result in Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982), which struck down on Establishment Clause grounds a Massachusetts statute that allowed churches to veto the issuance of liquor licenses for nearby businesses. See id. at 120-27. Although the statute was defended as necessary to "protect" religious institutions, see id. at 120, no Free Exercise Clause argument arose in the case. When the Court in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), rejected a Saturday Sabbatarian's argument that the Title VII prohibition on religious discrimination required his employer to relieve him from work on Saturdays, Justice White's majority opinion suggested that such an accommodation would discriminate against nonreligious employees, see id. at 80-81, although the case implicated neither the Free Exercise Clause nor the Establishment Clause.
214. 489 U.S. 1 (1989).
215. Id. at 25 (plurality opinion).
216. Id. at 11-13.
217. See id. at 18.
218. See id. at 19-20.
219. See id. at 27-28 (Blackmun, J., concurring).
220. See id. at 28.
221. See supra notes 139-60 and accompanying text.
222. See supra notes 14-17, 63-67 and accompanying text.
223. See supra Part I.B.1.a.
224. 494 U.S. 872 (1990).
225. See id. at 890.
226. Id.
227. See id. at 872.
228. Id. at 878-79.
229. See supra notes 139-54 and accompanying text.
230. See Smith, 494 U.S. at 878-79.
231. Id. at 884.
232. See id. at 881-82.
233. See Steven H. Aden & Lee J. Strang, When a "Rule" Doesn't Rule: The Failure of the Oregon Employment Division v. Smith "Hybrid Rights Exception," 108 PENN ST. L. REV. 573, 587-605 (2003) (reviewing lower courts' experience in applying hybrid rights doctrine and finding the doctrine ineffectual). The practical failure of the hybrid rights doctrine confirms Michael McConnell's early suggestion that "the notion of 'hybrid' claims was created for the sole purpose of distinguishing Yoder." See Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109, 1121 (1990).
234. Smith, 494 U.S. at 886.
235. Id. at 890.
236. See id. at 886-87.
237. Id. at 890.
238. Id.
239. See Diana B. Henriques, Religion Trumps Regulation as Legal Exemptions Grow, N.Y. TIMES, Oct. 8, 2006, § 1, at A1.
240. Pub. L. No. 103-141, 107 Stat. 1488 (codified as amended at 42 U.S.C. §§ 2000bb to 2000bb-4 (2000) ), invalidated in part by City of Boerne v. Flores, 521 U.S. 507 (1997).
241. 521 U.S. 507, 536 (1997).
242. 546 U.S. 418 (2006).
243. Id. at 424. For a discussion of RFRA's constitutionality as applied to federal law after Boerne, see Magarian, supra note 136, at 1917-61.
244. Justice Stevens, concurring in Boerne, would have struck down RFRA on its face as a violation of the Establishment Clause. See Boerne, 521 U.S. at 536-37 (Stevens, J., concurring). Justice Stevens joined the unanimous O Centro opinion without writing separately. O Centro, 546 U.S. at 422.
245. 544 U.S. 709 (2005).
246. 42 U.S.C. §§ 2000cc to 2000cc-5 (2000).
247. See Cutter, 544 U.S. at 725-26.
248. Id. at 720; see supra notes 197-206 and accompanying text. As in O Centro, Justice Stevens wrote no separate opinion in Cutter, declining another opportunity to press the Establishment Clause concern he voiced in his Boerne concurrence. See Cutter, 544 U.S. at 711.
249. 512 U.S. 687 (1994).
250. See id. at 706-09.
251. Id. at 706.
252. Id. at 707.
253. See id. at 732 (Scalia, J., dissenting).
254. See United States v. Salerno, 481 U.S. 739, 745 (1987) (holding that, for a facial challenge to succeed, "the challenger must establish that no set of circumstances exists under which the [challenged regulation] would be valid").
255. 540 U.S. 712 (2004).
256. See id. at 717-18.
257. See id. at 725.
258. See id. at 719.
259. See id. at 718 (citing Walz v. Tax Comm'n, 397 U.S. 664, 669 (1970)). For a more complete discussion of Walz, see supra notes 187-96 and accompanying text.
260. See Locke, 540 U.S. at 722-23.
261. See id. at 722 ("[W]e can think of few areas in which a State's antiestablishment interests come more into play.").
262. Justice Scalia, dissenting in Locke, provides a rare critique of the Court's "play in the joints" approach to conflicts between the two religion clauses, calling it "not so much a legal principle as a refusal to apply any principle when faced with competing constitutional directives." Id. at 728 (Scalia, J., dissenting). Justice Scalia, however, views the two clauses as perfectly coordinated to "demand neutrality," not as coming into any sort of conflict. Id.
263. 454 U.S. 263 (1981).
264. See id. at 265-66.
265. 508 U.S. 384 (1993).
266. See id. at 387-89.
267. 515 U.S. 819 (1995).
268. See id. at 822-23.
269. 533 U.S. 98 (2001).
270. See id. at 103.
271. Id. at 120; Rosenberger, 515 U.S. at 845-46; Lamb's Chapel, 508 U.S. at 395-97; Widmar v. Vincent, 454 U.S. 263, 277 (1981).
272. See Good News Club, 533 U.S. at 106 (noting the parties' stipulation that the school's opening of facilities for after-hours meeting had created a limited public forum); Rosenberger, 515 U.S. at 829-30 ("The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics."); Lamb's Chapel, 508 U.S. at 391-93 (suggesting that school facilities might have been a public forum but assuming arguendo dial they were a nonpublic forum); Widmar, 454 U.S. at 268 n.5 ("A university's mission is education, and decisions of this Court have never denied a university's authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities.").
273. See Good News Club, 533 U.S. at 107-10; Rosenberger, 515 U.S. at 830-32; Lamb's Chapel, 508 U.S. at 393-94; Widmar, 454 U.S. at 269 (stating that the University "discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion").
274. See Good News Club, 533 U.S. at 113-14 (holding that allowing a religious group to meet on school property would present no danger of endorsement of religion); Rosenberger, 515 U.S. at 839-40 (holding that inclusion of a religious beneficiary in a generally available funding scheme does not violate the Establishment Clause); Lamb's Chapel, 508 U.S. at 395-96 (concluding that University's creation of a public forum could not violate the Establishment Clause); Widmar, 454 U.S. at 272-73 ("[A] n open forum in a public university does not confer any imprimatur of state approval on religious sects or practices.").
275. 515 U.S. 753 (1995).
276. See id. at 770. The majority portion of Justice Scalia's opinion in Capitol Square followed Widmar and Lamb's Chapel without much embellishment. See id. at 757-63. The remainder of the opinion, which garnered only plurality support, sought to discredit posited distinctions between the educational institution cases and the distinctive facts of Capitol Square. See id. at 763-70 (plurality opinion).
277. See supra note 2 and accompanying text (distinguishing expressive access and public forum disputes).
278. See, e.g., Widmar, 454 U.S. at 273 ("The University has opened its facilities for use hy student groups, and the question is whether it can now exclude groups because of the content of their speech.").
279. See, e.g., Lamb's Chapel, 508 U.S. at 394 (stating that a school district denied access for religious film showings "solely because the series dealt with the subject from a religious standpoint").
280. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 119 (2001) (stating that "[w]e decline to employ Establishment Clause jurisprudence using a modified heckler's veto").
281. 515 U.S. 557 (1995); see supra notes 37-47 and accompanying text.
282. See Hurley, 515 U.S. at 580-81.
283. 494 U.S. 872 (1990); see supra notes 225-39 and accompanying text.
284. See Smith, 494 U.S. at 890.
285. 515 U.S. 819 (1995); see supra note 268 and accompanying text.
286. See Rosenberger, 515 U.S. at 845-46.
287. See, e.g., Police Dep't v. Mosley, 408 U.S. 92, 99 (1972) (holding that regulating speech "in terms of subject matter... is never permitted").
288. Compare, e.g., Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947) (holding that the Establishment Clause "requires the state to be a neutral in its relations with groups of religious believers and non-believers"), with Engel v. Vitale, 370 U.S. 421, 431 (1962) (holding that the "first and most immediate purpose [of the Establishment Clause] rested on the belief that a union of government and religion tends to destroy government and to degrade religion"). See generally Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DEPAUL L. REV. 993 (1990) (clarifying the meaning of "neutrality" as it relates to religious liberty).
289. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (striking down a local animal cruelty ordinance whose prohibitions specifically targeted a religious group).
290. Recent critiques of neutrality as a central feature of free speech doctrine include Erwin Chemerinsky, Content Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Court's Application, 74 S. CAL. L. REV. 49, 53-64 (2000) (criticizing several applications of the content neutrality principle); John Fee, Speech Discrimination, 85 B.U. L. REV. 1103, 1169-70 (2005) (arguing that the Court should subordinate the content neutrality principle to the goal of promoting public debate); Steven J. Heyman, Spheres of Autonomy: Reforming the Content Neutrality Doctrine in First Amendment Jurisprudence, 10
291. Recent critiques of neutrality as a central feature of Establishment Clause doctrine include Steven K. Green, Of (Un) Equal Jurisprudential Pedigree: Rectifying the Imbalance Between Neutrality and Separalionism, 43 B.C. L. REV. 1111, 1136-37 (2002) (arguing that the Court should emphasize separation and limit neutrality to an adjunct role) ; Frank S. Ravitch, A Funny Thing Happened on the Way to Neutrality: Broad Principles, Formalism, and the Establishment Clause, 38 GA. L. REV. 489, 492 (2004) (criticizing the Court's increasing reliance on neutrality in Establishment Clause cases and claiming that neutrality does not exist); Keith Werhan, Navigating the New Neutrality: School Vouchers, the Pledge, and the Limits of a Purposive Establishment Clause, 41 BRANDEIS L.J. 603, 603-04 (2003) (criticizing the Court's oscillation between " substantive" and "purposive" neutrality).
292. The classic argument for the value of neutral decisional principles is Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959). See also ROBERT H. BORK, THE TEMPTING OF AMERICA 143-53 (1990) (advocating judicial reliance on neutral principles).
293. 412 U.S. 94 (1973); see supra notes 57-62 and accompanying text.
294. See CBS v. DNC, 412 U.S. at 132.
295. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 572-75 (1995); supra notes 37-47 and accompanying text.
296. See, e.g., SUNSTEIN, supra note 3, at 36-37 (explaining the essential role of law in distributing opportunities for expression).
297. I develop this critique of the public-private distinction more thoroughly, and apply it in the particular context of nongovernmental censorship of wartime dissent, in Gregory P. Magarian, The First Amendment, the Public-Private Distinction, and Nongovernmental Suppression of Wartime Political Debate, 73 GEO. WASH. L. REV. 101, 135-51 (2004).
298. 418 U.S. 241 (1974); see supra notes 63-67 and accompanying text.
299. See Miami Herald, 418 U.S. at 258. The Court in a subsequent case went so far as to invoke the primacy of editorial autonomy in spite of the public-private distinction, using a particularly narrow conception of the public forum doctrine to protect a public broadcaster from the obligation to articulate objective standards for excluding a minor-party political candidate from a televised electoral debate. See Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 683 (1998).
300. 475 U.S. 1 (1986); see supra notes 29-36 and accompanying text.
301. See Pacific Gas, 475 U.S. at 13-15, 20-21.
302. 424 U.S. 1 (1976) (per curiam); see supra notes 110-20 and accompanying text.
303. See Buckley, 424 U.S. at 52-53, 143.
304. The Court itself has at times declared that expressive freedom means more than just expressive autonomy. See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (emphasizing "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open").
305. See, e.g., OWEN M. FISS, THE IRONY OF FREE SPEECH 9-18 (1996) (discussing the tension between the First Amendment values of liberty and equality).
306. Exemplars of this sort of argument include Julian N. Eule &Jonathan D. Varat, Transporting First Amendment Norms to the Private Sector: With Every Wish There Comes a Curse, 45 UCLA L. REV. 1537, 1554-64 (1998); Robert Post, Meikkjohn's Mistake: Individual Autonomy and the Reform of Public Discourse, 64 U. COLO. L. REV. 1109, 1125-28 (1993); Kathleen M. Sullivan, Resurrecting Free Speech, 63 FORDHAM L. REV. 971, 979-82 (1995). For a critical response, see Magarian, supra note 298, at 135-50.
307. Exemplars of this sort of argument include MARTIN H. REDISH, MONEY TALKS 147-95 (2001); Robert Post, Equality and Autonomy in First Amendment Jurisprudence, 95 MICH. L. REV. 1517, 1534-38 (1997); Kathleen M. Sullivan, Discrimination, Distribution and Free Speech, 37 ARIZ. L. REV. 439, 446-51 (1995). For a critical response, see Magarian, supra note 5, at 1393-99.
308. 447 U.S. 74 (1980); see supra notes 21-28 and accompanying text.
309. 453 U.S. 367 (1981); see supra notes 68-71 and accompanying text.
310. Compare PruneYard, 447 U.S. at 88 (1980) (holding that state constitutional provisions, which permit individuals to exercise free speech on the property of a privately owned shopping center to which the public is invited, did not violate the shopping center owner's First Amendment rights), with Lloyd Corp. v. Tanner, 407 U.S. 551, 567 (1972) ("It would be an unwarranted infringement of property rights to require [expressive property owners] to yield to the exercise of First Amendment rights under circumstances where adequate alternative avenues of communication exist."); compare also CBS, Inc. v. FCC, 453 U.S. at 396-97 (1981) (holding that the Communications Act of 1934, in authorizing the FCC to revoke broadcasters' licenses for willful or repeated failure to allow legally qualified candidates for federal elective office a special right of access to broadcasting, on an individual basis, is not a violation of broadcasters' First Amendment rights), with CBS, Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 116-21 (1973) (plurality opinion) (emphasizing the importance of broadcasters' editorial autonomy in rejecting political advertisers' First Amendment challenge to broadcaster's refusal to sell them advertising time). For further discussion of these cases, see supra notes 14-28, 57-62, 68-71 and accompanying text.
311. See, e.g., text accompanying notes 138-49.
312. 494 U.S. 872 (1990); see supra notes 225-39 and accompanying text.
313. See Smith, 494 U.S. at 890.
314. 374 U.S. 398 (1963); see supra notes 139-50 and accompanying text.
315. See Sherbert, 374 U.S. at 402.
316. See supra notes 151-54 and accompanying text.
317. 406 U.S. 205 (1972); see supra notes 155-60 and accompanying text.
318. See supra notes 162-85 and accompanying text.
319. See supra notes 208-21 and accompanying text.
320. 397 U.S. 664 (1970); see supra notes 187-96 and accompanying text.
321. 483 U.S. 327 (1987); see supra notes 197-206 and accompanying text.
322. See supra Part I.B.1.
323. The Court's progression on the Establishment Clause side of the religious accommodation cases does not follow the neat chronology found on the Free Exercise Clause side. The idea of neutrality, however, has played a prominent role in a much broader set of Establishment Clause cases than merely religious accommodation cases, and the Court over the past three decades has moved inexorably toward the view that greater allowance for government support of religion serves neutrality under the Establishment Clause. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 654 (2002) (upholding a publicly financed school voucher program under the principle of government neutrality toward religion). Read against that background, the Court's treatment of nonestablishment interests in the religious accommodation cases tracks its treatment of free exercise interests in moving from assertiveness to deference in the name of neutrality.
324. See supra Part I.B.1-2.
325. See supra notes 225-39 and accompanying text.
326. Employment Div. v. Smith, 494 U.S. 872, 878-79 (1990).
327. See Smith, 494 U.S. at 890 (asserting that the political disadvantaging of minority religions under a discretionary accommodation regime "must be preferred to a system... in which judges weigh the social importance of all laws against the centrality of all religious beliefs").
328. See Henriques, supra note 240.
329. See generally id. (providing examples of benefits churches experience with exemptions).
330. See generally Lisa Schultz Bressman, Accommodation and Equal Liberty, 42 WM. & MARY L. REV. 1007, 1015-24 (2001) (arguing that legislatures should adopt an "equal liberty approach," extending permissive accommodations to "similarly situated non-religious claimants" because otherwise religious believers are given privilege over their nonreligious counterparts) ; Christopher L. Eisgruber & Lawrence G. Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. CHI. L. REV. 1245, 1291-97 (1994) (arguing for application of an "equal regard" principle to religious and secular claims of conscience).
331. Stephen L. Carter, Religious Freedom as if Religion Matters: A Tribute to Justice Brennan, 87 CAL. L. REV. 1059, 1063 (1999).
332. See Jesse H. Choper, Comments on Stephen Carter's Lecture, 87 CAL. L. REV. 1087, 1089-90 (1999) (discussing instances of specific accommodations for minority religions).
333. 42 U.S.C. §§ 2000bb to 2000bb-4 (2000), invalidated in part by City of Boerne v. Flores, 521 U.S. 507 (1997). Dean Choper holds out the passage of RFRA as the strongest evidence of the Smith neutrality regime's benefits for minority religions. See Choper, supra note 333, at 1090. RFRA and its state equivalents, however, merely demonstrate formal legislative nondiscrimination against minority religions in a general scheme that primarily benefits Christian churches. Moreover, the fact that RFRA statutes operate through a judicial mechanism - requiring heightened scrutiny of accommodation claims-underscores legislators' inattention to religious believers' specific needs.
334. See Suzanna Sherry, Religion and the Public Square: Making Democracy Safe for Religious Minorities, 47 DEPAUL L. REV. 499, 507-16 (1998) (discussing differences between Christianity and Judaism that make religious accommodation more salient to Christians).
335. See McConnell, supra note 234, at 1130-36 (criticizing the majoritarian bias of Smith); Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. CHI. L. REV. 195, 216 (1992) (contending that Smith exchanges judicial recourse more useful to minorities than to majorities for legislative recourse more accessible to majorities than to minorities).
336. See Laycock, supra note 289, at 1001-06 (arguing for substantive neutrality, under which the government must minimize both encouragement and discouragement of religion); McConnell, supra note 135, at 690 (characterizing both the Free Exercise Clause and the Establishment Clause as designed to protect religious freedom).
337. See supra notes 133-36 and accompanying text.
338. See supra notes 299-306 and accompanying text.
339. See supra notes 321-24 and accompanying text.
340. 515 U.S. 819 (1995); see supra note 268 and accompanying text.
341. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 839 (1995); supra note 273 and accompanying text.
342. See supra Part I.B.3.c.
343. See supra Part I.A.
344. See supra notes 307-11 and accompanying text.
345. See supra notes 294-311 and accompanying text.
346. See supra notes 312-38 and accompanying text.
347. See supra notes 339-45 and accompanying text.
348. See Cass R. Sunstein, Neutrality in Constitutional Law (with Special Reference to Pornography, Abortion, and Surrogacy), 92 COLUM. L. REV. 1, 5-13 (1992) (criticizing the prevailing idea of neutrality in constitutional law as dependent on prepolitical distributions of resources that reflect normative biases); Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L. REV. 781, 804-24 (1983) (arguing that legal principles cannot be neutral because they necessarily reflect social practices).
349. The Seventh Circuit, in rejecting an unsuccessful patronage job seeker's challenge to a state party official's backing of a rival job candidate, has stated this concern explicitly: [W] e do not believe... that it is for us to establish a hierarchy of First Amendment rights by granting one First Amendment remedy that denigrates another First Amendment right. The machinery of the courts may not be invoked to protect one First Amendment right at the expense of the other. Tarpley v. Keistler, 188 F.3d 788, 796 n.7 (7th Cir. 1999).
350. See Barry Friedman, The History of the Countermajmitarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 334 (1998) (calling the countermajoritarian difficulty "the central obsession of modern constitutional scholarship"). The classic articulation of the countermajoritarian difficulty is ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 16-23 (Yale Univ. Press 2d ed. 1986) (1962).
351. Justice Frankfurter, in explaining his vote to affirm convictions for teaching Communist doctrine, addressed this concern directly: Free-speech cases are not an exception to the principle that we are not legislators, that direct policy-making is not our province. How best to reconcile competing interests is the business of legislatures, and the balance they strike is a judgment not to be displaced by ours, but to be respected unless outside the pale of fair judgment. Dennis v. United States, 341 U.S. 494, 539-40 (1951) (Frankfurter, J., concurring).
352. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 524 (1992).
353. See generally Ronald Dworkin, Rights as Trumps, in THEORIES OF RIGHTS 153, 154 (Jeremy Waldron ed., 1984) (setting forth the equal concern theory of why certain rights should trump contrary political decisions).
354. See LOUIS MICHAEL SEIDMAN, OUR UNSETTLED CONSTITUTION 32 (2001) (positing that the decision to remand contestable constitutional questions to the political process is itself a contestable decision); Eugene V. Rostow, The Democratic Character of Judicial Review, 66 HARV. L. REV. 193, 213 (1952) (noting that the judicial refusal to decide a constitutional question amounts to upholding the constitutionality of challenged government action).
355. Although my formulation of participation-enhancing review addresses the Court's countermajoritarian concern about substantive resolution of First Amendment collisions, the people's demonstrated ability to affect the shape of constitutional judicial review over time should form part of the context for assessing that concern. See generally Barry Friedman, Mediated Popular Constitutionalism, 101 MICH. L. REV. 2596, 2613-29 (2003) (discussing the capacity of public opinion to constrain judicial autonomy).
356. Three important insights challenge the premises of procedural theories of judicial review: that legislatures do not reflect the people's will to the extent procedural theories assume; that courts reflect the people's will to a greater extent than procedural theories assume; and that the judicial role in our system contributes to, rather than detracts from, our Constitution's conception of democracy. I incorporate these insights to defend judicial enforcement of expressive access rights in Magarian, supra note 5, at 1406-29.
357. See supra notes 346-55 and accompanying text.
358. 304 U.S. 144, 152 n.4 (1938).
359. ELY, supra note 1, at 73-104.
360. Carolene Prods., 304 U.S. at 152 n.4.
361. See ELY, supra note 1, at 105-34.
362. Carotene Prods., 304 U.S. at 153 n.4.
363. See ELY, supra note 1, at 135-79.
364. See Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 717 (1985) (accepting the utility of the "political process" element of Carolene Products but strongly critiquing the "prejudice against discrete and insular minorities" formulation); Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 VA. L. REV. 747, 784-88 (1991) (finding criticisms of Ely's "minority protection" argument convincing while defending Ely's "political process" argument).
365. See ELY, supra note 1, at 81-84.
366. See id. at 101-04 (advocating representation-reinforcing review as consistent with democracy).
367. See id. at 73-77.
368. Id. at 77. Ely also employed a different sense of democratic participation to explain die minority protection element of his theory. See id. (positing that judicial authority to protect minorities ensures "the opportunity to participate... in the accommodation [political] processes have reached").
369. See Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 YALE L.J. 1063, 1067-72 (1980) (contending that any commitment to democratic participation must draw upon substantive values to determine the details of what participation means); Mark Tushnet, Darkness on the Edge of Town: The Contributions of John Hart Ely to Constitutional Theory, 89 YALE L.J. 1037, 1045-48 (1980) (criticizing Ely's explanations of participation as a procedural justification for judicial review).
370. Ely himself anticipated this necessary elision. See ELY, supra note 1, at 75 n.*.
371. See id. at 105-25.
372. See id. at 117.
373. See id. at 116-25 (discussing judicial review of voting procedures).
374. Id. at 105.
375. See id. at 105-16 (discussing judicial review of speech regulations).
376. See Tribe, supra note 370, at 1070-72 (arguing that process-based theory requires a substantive account of political community and political interactions); Tushnet, supra note 370, at 1047-48 (criticizing political process theory for providing an insufficient account of the relationship between participation and democracy).
377. ELY, supra note 1, at 102-03.
378. See id. at 111-12.
379. Id. at 103.
380. Ely makes only one oblique reference to a problem of expressive access. In describing the proper balancing analysis for regulations that only incidentally suppress speech, he suggests that "a more serious threat should be required [to justify the regulation] when there is doubt that the speaker has other effective means of reaching the same audience." Id. at 111.
381. See id. at 94.
382. See id. at 100 (emphasizing the role of the Free Exercise Clause in protecting minority religious believers and comparing its function to that of the Equal Protection Clause). Ely's only other allusion to the Establishment Clause also appears in his discussion of minority protection. See id. at 141 (discussing Epperson v. Arkansas, 393 U.S. 97 (1968)).
383. See supra Part II.B.1.
384. On a practical level, structural problems in our electoral system have frayed the lines of political accountability necessary to motivate the elected branches to advance the informational and inclusive benefits of democratic participation. See Magarian, supra note 5, at 1413-24.
385. In this sense, the substantive participation value offers a partial response to objections that Ely's account of democratic participation pays insufficient attention to the normative shape participation should take. See supra note 370 and accompanying text.
386. See generally MEIKLEJOHN, supra note 3, at 42 (arguing that freedom of speech "is the basic postulate of a society which is governed by the votes of its citizens").
387. See generally Magarian, supra note 48, at 1972-91 (contrasting the private rights theory and the public rights theory).
388. See generally BARRON, supra note 3, at 300-03 (analyzing the state of access rights to various forms of media and arguing that a right of access for minorities "is one way of grappling with both the enormous power of the mass media and the difficulty of mass participation in it").
389. On the divergence between proposals for expressive access rights and expressive access reforms, see Magarian, supra note 5, at 1376-88.
390. See Magarian, supra note 48, at 1980-88.
391. Indeed, no democracy-focused free speech theory denies that expressive autonomy plays an important role in advancing effective democratic government. See C. EDWIN BAKER, MEDIA, MARKETS, AND DEMOCRACY 129-53 (2002) (discussing the instrumental value of media autonomy under various democratically grounded conceptions of press freedom); Magarian, supra note 298, at 151-55 (discussing the role of autonomy in a public rights theory of expressive freedom); Robert C. Post, Racist Speech, Democracy, and the First Amendment, 32 WM. & MARY L. REV. 267, 284 (1991) (describing expressive freedom as necessary to reconcile individual autonomy with collective self-government).
392. Because expressive access cases typically involve putative speakers' claims of access rights to nominally private expressive property, substantive judicial resolution that takes access interests into account would require altering the normative terms of the public-private distinction. Elsewhere I have argued that the public-private distinction should shield the expressive autonomy of natural persons, while courts should assess the rights and obligations of nongovernmental institutions based on each institution's instrumental value for democratic discourse. See Magarian, supra note 298, at 146-72.
393. See, e.g., Tribe, supra note 370, at 1065 (characterizing the Religion Clauses as "[p]lainly... substantive").
394. See supra Part I.B.3.
395. Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring).
396. Other efforts to understand the Religion Clauses in democratic terms include Abner S. Greene, The Political Balance of the Religion Clauses, 102 YALE L.J. 1611, 1614-40 (1993) (positing that the Establishment Clause excludes religious values from the political sphere while the Free Exercise Clause excludes political authority from the religious sphere); Sullivan, supra note 336, at 198 (contending that the Religion Clauses protect "religious liberty insofar as it is consistent with the establishment of the secular public moral order").
397. On the desirability and constitutional viability of egalitarian accommodations in the context of the federal Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4 (2000), invalidated in part by City of Boerne v. Flores, 521 U.S. 507 (1997), see Magarian, supra note 136, at 1992-95.
398. On the desirability and constitutional viability of idiosyncratic accommodations, again in the context of RFRA, see Magarian, supra note 136, at 1995-97.
399. See supra Part II.B.1.
400. See Klarman, supra note 365, at 761 n.68 (acknowledging that political process theory can encompass racial and religious discrimination but opposing such an extension because "it would require courts to undertake inevitably speculative inquiries").
401. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (striking down a federal minority set-aside program as a violation of equal protection); Shaw v. Reno, 509 U.S. 630, 642 (1993) (finding that a challenge to an electoral district designed to remedy discrimination against African Americans stated an equal protection cause of action). Ely, although committed to the intent requirement, avoided the Court's fallacious fixation on "reverse discrimination" by determining that, under the representation reinforcement theory, the white majority cannot discriminate against itself. See ELY, supra note 1, at 170-72.
402. See Robert C. Post, Subsidized Speech, 106 YALE L.J. 151, 188-89 (1996).
403. Indeed, First Amendment doctrine focuses directly on power differentials when it takes special care to protect inexpensive means of expression. See Reno v. ACLU, 521 U.S. 844, 870 (1997) (emphasizing, in striking down an online "indecency" ban, that the Internet "provides relatively unlimited, low-cost capacity for communication of all kinds"); City of Ladue v. Gilleo, 512 U.S. 43, 57 (1994) (indicting a municipal ban on most residential signs as restricting "an unusually cheap and convenient form of communication").
404. See, e.g., BORK, supra note 293, at 143-60 (articulating and defending an originalist approach to constitutional interpretation).
405. See, e.g., CASS R. SUNSTEIN, ONE CASE AT A TIME 259-63 (1999) (arguing for the desirability of judicial minimalism on prudential and political grounds).
406. Others have suggested different ways in which Ely's procedural concerns might flower into justifications for more normatively robust varieties of judicial review. See Rebecca L. Brown, Liberty, the New Equality, 77 N.Y.U. L. REV. 1491, 1533 (2002) (advocating judicial examination of public reasons for burdens on individual liberty as a species of representation-reinforcing review); William N. Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 YALE L.J. 1279, 1293-1317 (2005) (proposing an extension of representation-reinforcing review based on contemporary conditions of pluralist democracy).
407. See HANNA PITKIN, THE CONCEPT OF REPRESENTATION 127-31 (1967) (distinguishing agency and trusteeship models of representation).
408. See, e.g., Eskridge, supra note 407, at 1302-05 (suggesting that proper representation-reinforcing review in speech cases should protect the ability of opposing groups to associate for expressive purposes).
409. See generally Frank I. Michelman, Traces of Self-Government, 100 HARV. L. REV. 4, 17-55 (1986) (discussing the civic republican tradition).
410. See supra notes 37-47 and accompanying text.
411. See supra notes 225-39 and accompanying text.
412. Participation-enhancing review would allow courts to reject religious accommodation claims based on government interests unrelated to the Establishment Clause. In sharp contrast to the Court's reflexive deference under Smith, however, attention to the substantive participation value would require courts to measure asserted government interests against a substantial conception of free exercise, in the manner of heightened constitutional scrutiny.
413. 515 U.S. 819 (1995); see supra note 268 and accompanying text.
414. See id. at 823-27.
415. See supra Part I.B.3.c.
416. Rosenberger, 515 U.S. at 842-46.