Freedom of Association

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The freedom of association derives from the free speech and free assembly provisions of the first amendment, and it protects the right of persons to enter into relationships with one another unhampered by intrusive governmental regulation. More precisely, the freedom of association encompasses two distinct guarantees: the freedom of intimate association and the freedom of expressive association. The freedom of intimate association protects "certain kinds of highly personal relationships," such as marriage. The freedom of expressive association, on the other hand, protects "the right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends."

In recent cases the Court has made clear the limits of these two guarantees with respect to antidiscrimination laws. In Roberts v. United States Jaycees (1984) and Board of Directors of Rotary International v. Rotary Club (1987), the Court rejected arguments by both the Jaycees and Rotary International that laws prohibiting sex discrimination could not be applied to them without violating their members' freedom of association. Both organizations limited their regular membership to men. The Court held that neither the freedom of intimate association nor the freedom of expressive association protected this type of discrimination by the organizations in question. The freedom of intimate association did not apply at all because both organizations tended to have unlimited memberships and open meetings. The freedom of expressive association may have been implicated, but not sufficiently to override the government's compelling state interest to eradicate discrimination. As the Court said in Rotary, "The evidence fails to demonstrate that admitting women … will affect in any significant way the existing members' ability to carry out their various purposes."

In New York State Club Association v. New York City (1988), the Court turned back yet another free association challenge to an antidiscrimination law. New York City prohibits discrimination on the basis of race, gender, and other grounds by any "place of public accommodation, resort or amusement," but exempts from this restriction any group "which is in its nature distinctly private." In 1984 the city passed a new law providing that no groups shall be considered private if it "has more than four hundred members, provides regular meal service and regularly receives payment … from or on behalf of nonmembers.…" The new law exempted religious and benevolent associations from this provision. A consortium of private clubs and associations challenged the ordinance, claiming that it abridged on its face both the First Amendment and the equal protection clause. The Supreme Court unanimously disagreed.

Writing for the Court, Justice byron r. white argued that the First Amendment facial challenge failed both because the law was not invalid in all its applications and because its provisions were not overbroad. Under the previous rulings in Roberts and Rotary, the law clearly could be applied constitutionally to some of the groups that challenged it, and no evidence was presented showing that the law applied impermissibly to a substantial number of other groups. White acknowledged that the law still might be unconstitutional as applied to certain associations, but noted that these groups maintained the right to sue in order to invalidate particular applications of the ordinance. White also rejected the consortium's equal protection challenge, arguing that the city council could have reasonably believed that exempted religious and benevolent groups differ from those covered by the ordinance because of the level of business activity conducted by the groups.

No member of the Court has dissented in these cases, but Justice sandra day o'connor has tried to clarify when discriminatory activities might be protected by the freedom of expressive association. In Roberts and again in New York, O'Connor filed concurring opinions that sought to distinguish expressive associations from commercial ones. An expressive association exists to promote a particular message; thus, according to O'Connor, it should be protected by the full force of the First Amendment against state control of its membership. A commercial association, however, exists primarily to engage in certain commercial activities, and the protection afforded it by the Constitution subsequently should be much more limited. In O'Connor's view, groups like the Jaycees are predominantly engaged in commercial activities; hence, the freedom of expressive association should not exempt them from rational state regulations such as antidiscrimination laws. In contrast, gender-exclusive groups such as Boy Scouts or Girl Scouts probably should be protected as expressive associations because "even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement."

John G. West, Jr.

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Freedom of Association

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