American constitutional law treats “orthodoxy” as verboten. The concept has become a shorthand for the state imposition of belief that the First Amendment most centrally forbids. This hostility traces back decades, finding its most famous expression in West Virginia State Board of Education v. Barnette (1943). The decision, delivered as Nazi Germany occupied much of continental Europe, carries the shadow of a nation battling fascism abroad. “If there is any fixed star in our constitutional constellation,” Justice Jackson wrote, “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

Similar anti-orthodoxy language pervades recent First Amendment decisions of the Roberts Court. This spring, in Chiles v. Salazar, Justice Gorsuch quoted parts of Justice Jackson’s Barnette dictum and added an elaboration of his own: “the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.” He used that shield to strike down a Colorado law prohibiting licensed mental health professionals from practicing some forms of conversion therapy.

A Malleable, Resonant Pejorative

This anti-orthodoxy rhetoric is potent. It is also conceptually confused and increasingly destabilizing to contemporary First Amendment doctrine. This is especially acute in the undifferentiated and imprecise form it has assumed in cases like Chiles. Two related problems explain why.

The first is that anti-orthodoxy language is malleable. Orthodoxy is a classificatory judgment, not a description of reality. Whether a legal or social rule counts as “orthodoxy” depends on the level of generality at which one describes it, the cultural norms through which one measures it, and the referential community one uses to evaluate it. Shift any of those variables and the label can shift accordingly. “Orthodoxy” as modern judges have synthesized it functions more as an abstract talking point than a coherent legal principle. Its rhetorical gravitas, borrowing from associations with individualism and anti-totalitarianism, has a talismanic luster but distracts more than it illuminates.

The second problem follows from the first: the undifferentiated anti-orthodoxy rhetoric obscures that not every legally enforced norm is compelled indoctrination. Some enforced norms are the legitimate output of democratic self-governance: law shaping behavior, as law invariably does, in ways that reflect contested but democratically settled resolutions and morally aspirational values inherent to a constitutional project. Some encode the procedural and substantive preconditions that make democratic self-governance possible. And some reflect expert consensus within professional and scientific communities. Collapsing these categories—and, worse, tarring them all with a freighted pejorative of constitutional law—makes it impossible to reason carefully about what the First Amendment prohibits, protects, and says nothing.

Disentangling Orthodoxies

What invocation of orthodoxy requires, by contrast, is jurisprudential attention to differences flattened by a monolithic application. Three categories are worth distinguishing. The first—and the one Barnette (properly understood) addressed—is compelled indoctrination and idea espousal. There, the state required unwilling children of Jehovah’s Witnesses to salute the American flag and recite the pledge of allegiance as the price of attending public school. Rather than conditioning a discretionary benefit in a neutral and justifiable manner, the state coerced affirmative ideological incantation and performance.

The second category is democratic value-formation and preservation. It can superficially resemble the first, as both categories involve law molding belief and action. But the resemblance is illusory. Pluralistic democracy requires that state services, public institutions, and legal rules internalize and proceed from universal commitments about citizens’ equal worth and underlying procedural and substantive structure of self-government. All laws reflect values and most impose them. The question is not whether law has normative content but which content it has, and whether institutional ordering on that content accomplishes legitimate state ends while preserving space for dissenters to structure private life as they wish.

When Congress enacted landmark civil and voting rights statutes in the mid-1960s, it was not registering a neutral normative preference. It was deliberately seeking to supplant one prevailing social arrangement with another. As Justice Sotomayor observed in her Students for Fair Admissions v. Harvard dissent, Jim Crow regulations punished “dissent from racial orthodoxy,” the dominant and oppressive racial hierarchy of the postbellum white South. These civil rights laws sought to replace this reactionary social arrangement with a more egalitarian one ensuring black citizens’ access to democratic representation, public accommodations, and economic opportunity.

Civil rights laws are values settlements of contested social questions enforced through law. These questions remain bitterly contested, as made plain over the past two weeks by the Supreme Court’s dismantling of the Voting Rights Act of 1965 and the resulting febrile stampede among southern states to extinguish black political power. Here, that meant legislating to ensure black citizens have the equal opportunity to elect a candidate of their choosing, even if white majorities objected to the purpose, implementation, and results of this principle.

These civil rights protections “prescribe what shall be orthodox” in the shared and important provinces of public life. Yet enforcing values settlements within these provinces is exactly what democratic self-governance looks like when it fulfills its normative commitments to pluralism and equal citizenship. Laws like the Voting Rights Act expanded access and participation for black people in our polity and economy while preserving space for other citizens to hold contrary views about the equal worth of black citizens, so long as they did not act on those views to harm others. Colorado’s effort to ensure just treatment of children in state-funded preschool does the same.

The third category is expert consensus. Substantive scientific and empirical consensus is not simply another form of opinion. Colorado’s regulation of conversion therapy, at issue in Chiles, rested on the judgment of the professional bodies that such practices are harmful and ineffective. Requiring licensed practitioners to operate within the parameters of medical agreement when working in a particular professional capacity is categorically different from requiring citizens to affirm a political creed.

A Shield Becomes a Sword

To see the problems of nebulous orthodoxy rhetoric, consider another case out of Colorado: St. Mary Catholic Parish v. Roy, in which the Court granted certiorari recently and which will be argued next term. Catholic preschools that refuse to enroll four-year-olds with LGBT parents claim the First Amendment entitles them to funds from a relatively new Colorado preschool program. Their certiorari petition characterizes the program’s nondiscrimination requirement—unexceptional language common across civil rights laws that bars discrimination based on sexual orientation, gender identity, race, and ethnicity, among other protected characteristics—as enforcing “orthodoxies about marriage and sexuality.”

From the vantage point of conservative Christians who successfully petitioned the Court, Colorado’s requirement is the enforcement of sexual and marital dogma. Yet from the vantage point of LGBT parents seeking equal access to a state program for their children, the same requirement is anti-orthodoxy, a refusal to let Christian nationalism shut the schoolhouse door in Dolores, Colorado (population 937) as readily as in Denver. Framed from this reference point, permitting state-funded programs to discriminate entrenches an orthodoxy of LGBT inferiority.

Orthodoxy as a concept does not resolve that classificatory choice; it merely ratifies whichever the speaker has already made. In so doing, orthodoxy talk distracts from the pressing question of why a society would want to prefer one legal arrangement over the other. In Roy, that question demands reckoning with the practical and stigmatic harms of the state subsidizing discrimination against young children because of their parents’ immutable characteristics—a question entirely erased by framing the dispute as one over “orthodoxies about marriage and sexuality.”

Cabining Anti-Orthodoxy

Barnette’s core prohibition—that the state may not compel affirmation of belief—remains sound. The error is thoughtless judicial expansion of this idea beyond the originating forced indoctrination context. In so doing, the Court has undermined pluralism with the very language most associated with enshrining it in the American “constitutional constellation.”

Barnette protected a minority’s children from state compulsion and, by extension, access to a public good. The Roy plaintiffs invoke this principle forged in that protection to authorize excluding another minority’s children from the same public good. Colorado does not require Catholic preschools to affirm anything about LGBT families; it merely requires all providers that voluntarily participate in a state program treat children the same.

Chiles follows a similarly inverted logic to the same destination. Colorado’s law prohibiting certain types of conversion therapy regulated a narrow class of state-credentialed actors whose conduct, not their beliefs or political speech, fell within the scope of professional oversight. The law left licensed practitioners entirely free to hold whatever views they wish about LGBT people and speak accordingly.

Orthodoxy talk extends well beyond recent cases, heightening the costs of its conceptual confusion. Conservative justices have marshaled Barnette’s arresting language to turn the First Amendment against civil rights enforcement, labor unions, and campaign finance regulations. Anti-orthodoxy language echoing Barnette also appears in the individual writings of Justice Thomas pressing for sweeping prerogatives for conservative Christians, in Justice Gorsuch’s inveighing against vaccination requirements, and in Justice Alito’s Obergefell dissent, which warned that constitutional recognition of the right to same-sex marriage “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.”

Rather than asking whether an enactment creates a “new orthodoxy,” constitutional reasoning requires a more disciplined set of questions to analytically situate dominant belief systems in relation to constitutional values and operationally aid judges to balance competing interests and harm allegations. Is the alleged orthodoxy the product of authoritarian imposition or democratic deliberation? Does the law leave dissenters meaningful space to hold contrary convictions without conscripting others into bearing the cost? Does exclusionary power run from state to individual in the pursuit of important ends, or from private institutions to vulnerable groups in pursuit of sectarian privilege or ideological exclusion?

None of this requires abandoning Barnette. It requires reading it for what it is: a limit on state-compelled ideological conformity targeting dissidents, not a warrant to capitalize on galvanizing rhetoric to opt out of neutral law, erode civil rights enforcement, or insulate professional harm from democratic regulation.