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INTRODUCTION 96 I. WHAT IS A DRAG PERFORMANCE? 97 II. DRAG IS EXPRESSIVE CONDUCT 100 III. DRAG PERFORMANCES EXPRESS VIEWPOINTS 105 IV. DRAG IS NOT OBSCENE 108 A. CURRENT SUPREME [...], This article explains why virtually any law aimed specifically at restricting, suppressing, or banning drag performances violates the First Amendment. The key reasons for this are as follows. First, drag performances are expressive conduct protected by the First Amendment. Second, drag performances generally do not fall into any uncovered category of speech, such as obscenity. Third, drag performances express viewpoints. Fourth, the Supreme Court has set an extremely high standard for permitting viewpoint discrimination--even for speech not covered by the First Amendment. Laws aimed at restricting drag performances do not meet this high standard because, among other reasons, such laws are not precisely tailored. Thus, laws that pick out drag performances for restriction over and above other forms of covered (or even uncovered) speech violate the First Amendment. After offering these arguments, this article examines how these First Amendment facts impact anti-drag laws in Tennessee, Arkansas, and Montana. These three case studies provide further evidence for the conclusion that anti-drag laws are generally unconstitutional by examining issues of overbreadth and vagueness, with an emphasis on how vague and overbroad anti-drag laws like these impermissibly chill the speech and expression of drag performers and of trans people.

In 303 Creative LLC v. Elenis, a web designer sought a legal right to refuse to make wedding websites for same-sex couples while making wedding websites for other couples as a service provided by her business open to the public. The web designer also sought a legal right to post a notice on her business webpage stating that she would refuse to provide such services for same-sex couples' weddings. Here, I argue that 303 Creative marks a fairly radical break from previous legal cases dealing with whether service providers have the legal right to deny services for same-sex weddings. This is because, if we take the web designer at her word, the web designer appears to have sought these legal rights, in significant part, in order to use an act of commercial discrimination as an act of religious message sending. In support of this conclusion, I argue that acts of selective commercial service constitute the primary means by which the web designer sought to promote her preferred religious messages and that these acts of selective commercial service are acts of discrimination. I also discuss some of the significance of this case for religion and politics in the United States. [ABSTRACT FROM AUTHOR]

In order for a religious conviction to receive protection under the First Amendment or the Religious Freedom Restoration Act (RFRA), it must be a sincere religious conviction. Some critics of the Supreme Court's ruling in Burwell v. Hobby Lobby have suggested that the plaintiffs in that case and in related cases were motivated more by political ideology than by sincere religious conviction. The remedy, they argue, is for courts to be quicker to scrutinize claims of religious sincerity. In this Article, I consider another possibility "namely, that current sociopolitical partisanship in the United States has eroded a clear distinction between political ideology and religious conviction for plaintiffs in cases like Hobby Lobby. If this theory is correct, it is far less obvious what the proper remedy is. I consider and reject the view that newly formed religious convictions with political origins should be treated as less than sincere on those grounds. However, I do argue that whether a religious conviction seems to have been newly generated by political circumstances should be taken into account when deciding religious free exercise cases. I suggest that this could best be accounted for if the courts adopted a balanced interests approach instead of the winner-takes-all "checklist" approaches that have developed under Employment Division v. Smith and RFRA. [ABSTRACT FROM AUTHOR]

The ambiguity theory of 'knows' is the view that 'knows' and its cognates have more than one sense, and that which sense of 'knows' is used in a knowledge ascription or denial determines, in part, the meaning (and as a result the truth conditions) of that knowledge ascription or denial. In this paper, I argue that the ambiguity theory of 'knows' ought to be taken seriously by those drawn to epistemic contextualism. In doing so I first argue that the ambiguity theory of 'knows' is a distinct view from epistemic contextualism. Second, I provide independent philosophical and linguistic considerations to motivate the ambiguity theory. Third, I argue that the ambiguity theory has the same central, generally agreed upon virtues ascribed to epistemic contextualism (namely, the ability to solve certain persistent epistemological problems relating to skeptical arguments and the ability to preserve the truth of most of our everyday, ordinary usages of 'knows' and its cognates). Finally, I provide an ambiguity-theory-friendly account of why contextualism may be initially appealing, and why this shouldn't dissuade us from taking the ambiguity theory seriously nonetheless. [ABSTRACT FROM AUTHOR]

Appeals to "hostility to religion" have been a regular part of the Supreme Court's First Amendment jurisprudence for the last eighty years, but in all that time the Court has never provided a clear explanation of what constitutes "hostility to religion." This lack of explanation has recently become increasingly troubling given the significant role that the concept of "hostility to religion" has played in several high-profile Supreme Court decisions within the last two years, including Masterpiece Cakeshop v. Colorado, Trump v. Hawaii, and American Legion v. American Humanist Association. In this paper, I provide a thorough and detailed history of the Court's appeals to "hostility to religion." Through the lens of that historical examination of the Court's use of the concept of "hostility to religion," I argue that the Court has come to use "hostility to religion" ambiguously to mean both the broad category of anything that fails to be neutral toward religion and the narrower category of specifically that which exhibits active animosity toward religion. I argue that this ambiguity has resulted in confused outcomes and may contribute to ratcheting up the culture wars. I further argue that the best remedy is for the Court to be clearer and more judicious in its appeals to "hostility to religion" going forward. I offer four suggestions for how the Court can do so. [ABSTRACT FROM AUTHOR]