Freedom OfExpressive Association
In Boy Scouts of America v. Dale,25 the United States Supreme Court held that New Jersey’s antidiscrimination law, which prohibits discrimination on the basis of sexual preference, could not constitutionally be applied to the Boy Scouts’ decision not to permit an openly gay man to serve as a scoutmaster.
The Court deemed the Scouts to be an “expressive association” - a group organized at least in part to promote certain viewpoints - and it concurred with the Scouts’ claim that forcing the Scouts to employ gay scoutmasters would impair the Scouts’ ability to convey their message that homosexuality is immoral. Therefore, the Court concluded, applying New Jersey’s law to the Scouts’ decision violated the Scouts’ right of freedom of speech.The Dale decision was quite controversial. Critics attacked each link in the chain of argument. Some argued that the Scouts’ had no expressed view on homosexuality.26 Some argued that retaining Dale as a scoutmaster would not impair the Scouts’ ability to condemn homosexuality.27
I believe, however, that on those points, the Court was correct to decide as it did. For all sorts of reasons, the Court has no business trying to determine whether an organization really holds the views its leadership claims. (And as several commentators pointed out, it would not necessarily be a good thing to
other media. See, e.g., F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978) (upholding ban on offensive speech on the airwaves during prime time); ProLife Alliance v. British Broadcasting Corp., (2003) UKHL 23 (same). Both cases stand in stark contrast to the United States Supreme Court’s much more speech protective decisions regarding offensive speech in other contexts. See, e.g., Cohen v. California, 403 U.S. 15 (1971), and Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).
25 530 U.S. 640 (2000).
26 See, e.g, Madhavi Sunder, “Cultural Dissent,” 54 Stan. L. Rev. 495, 498-501, 508, 557 (2001); David McGowan, “Making Sense of Dale,” 18 Const. Comm. 121 (2001).
27 See, e.g., Jason Mazzone, “Freedom’s Association,” 77 Wash. L. Rev. 639, 683-4 (2002); James P. Madigan, “Questioning the Coercive Effect of Self-Identifying Speech,” 87 Iowa L. Rev. 75 (2001).
require the Scouts to make their anti-homosexuality more explicit.[235]) And it should be self-evident that forcing an organization to act inconsistently with its stated positions will tend to undermine the effectiveness of its message. The very act of forming an organization dedicated to certain tenets is a way of expressing those tenets; and admitting into the organization people who do not endorse the tenets (Dale), or people who may outwardly endorse the tenets but whose conduct belies them, undermines that expression.
The real problem with the Court’s decision in Dale is with the framework the Court employed. The Court assumed that laws governing membership in expressive organizations raise free speech issues because they affect the organizations’ ability to express their views. Indeed, the Court had taken this stance in several cases leading up to Dale.[236] Laws governing membership in organizations are, however, Track Two laws. Their purpose is to integrate social life along various axes and to make certain resources and opportunities more widely available. Their purpose is not to affect messages.[237] Of course, as is true of all Track Two laws, these laws do have message effects. Indeed, they have the kinds of message effects the Court identified. But as Chapter Two made clear, message effects are ubiquitous and cannot themselves render a law one that implicates freedom of expression.
This is not to say that the Court was wrong to decide that New Jersey’s law could not constitutionally apply to the Scouts’ qualifications for membership and organizational roles.
Perhaps the United States Constitution can be properly read to include a right to freedom of association that would cover the Scouts. Indeed, I believe that as a general matter, freedom of association is a worthy candidate for constitutionalization.[238] Consider the array of associations that we form. They range from families and friends to professional associations, ideological and credal (political, religious, philosophical) associations, discussion groups and debating societies, associations based on accomplishments and virtues, recreational associations (for sports, games, and hobbies), fraternal, civic, and charitable associations, ascriptive associations, common interest associations, commercial associations, and business firms. Membership can be based on affective ties, creed, conduct, interests, occupation, accomplishments, or ascriptive traits. Such associations, although they may in particular instances have malign effects, are in general essential to the development of well socialized and autonomous citizens; and they form the intermediate institutions that are the bases of civic life and the bulwarks against the totalizing state that are essential to maintaining liberal democracies.32 And although there are hard cases with respect to freedom of association - most notably, those involving certain forms of discrimination by businesses, where access to jobs is at stake33 - in most cases we would be well advised to have the state stay out of the internal affairs and membership criteria of private associations. Do we really want the state to have the power to outlaw a black political party or a women-only or gay-only political group?34 to require the Catholic Church to admit women to32 See generally Nancy L. Rosenblum, Membership and Morals: The Personal Uses of Pluralism in America (1998); George Kateb, “The Value of Association,” in Freedom of Association (A Gutmann, ed., 1998): 35-63; John O.
McGinnis, “Reviving Toqueville's America: The Rehnquist Court's Jurisprudence of Social Discovery,” 90 Cal. L. Rev. 485 (2002); Hager, supra n. 27.33 The Supreme Court has attempted to separate the religious from the commercial aspects of enterprises run by religious groups in determining when those groups may discriminate in favor of members of the religion. See Corporation of Presiding Bishop of the Church of Latter-Day Saints v. Amos, 483 U.S. 327 (1987).
There is no doubt that forbidding discrimination on certain bases precludes many who engage in business from associating on grounds that they prefer and from constructing their products and services in specific ways. For discussion of the conflict between antidiscrimination laws and product/service definition, see Kimberly A. Yuracko, “Private Nurses and Playboy Bunnies: Explaining Permissible Sex Discrimination” (unpublished manuscript on file with author); Larry Alexander, “What Makes Wrongful Discrimination Wrong? Biases, Preferences, Stereotypes, and Proxies, 141 U. Pa. L. Rev. 149 (1992). For a defense of exempting commercial endeavors from the right of freedom of association, see Hager, supra note 28, at 159-61.
34 In Terry v. Adams, 345 U.S. 461 (1953), the last of the so-called “white primary” cases, the Court did appear to hold the view that political parties could not define themselves racially. One might have thought that whatever restrictions the Constitution might impose on government's actions once the government is chosen, it should not be read to control the grounds for selecting the government.
Putting aside the case for a general constitutional right of freedom of association, there is a strong case for constitutionalizing a right of political association, which right would entail, among other things, the right of political parties to control their membership and procedures for selecting candidates. The Supreme Court has indeed upheld such a right of political parties, but it has erroneously regarded it as a part of freedom of expression under the First Amendment.
See, e.g., California Democratic Party v. Jones, 120 S. Ct. 2402 (2000) (invalidating state law permitting non-party members to vote in party's primary); Tashjian v. Republican Party, 479 U.S. 208 (1987) (invalidating state law preventing independents from voting in party primary). As was true of the Court's decision in Dale, however, these decisions cannot be derived from a plausible principle of freedom of expression. They seem more naturally connected to structural necessities of democratic self-government. (I discuss the linkage - or absence of linkage - between democratic self-government and the putative human right of freedom of expression in Chapter Seven.) the priesthood, or Orthodox Jews to integrate the seating of men and women worshipers? to make illegal the formation of a group requiring abstinence from homosexual (or perhaps all) sex? to set the rules for sports and games?[239] (Indeed, in some cases, it is difficult to imagine what a rule requiring admission of someone into an organization that wishes to exclude him actually would require of the organization: Would its members be required to fraternize with him? Would they be forbidden to bloc vote against him?[240])Having stated the case for freedom of association and for the desirability of the result in Dale, I must reiterate that laws such as the New Jersey antidiscrimination law in Dale, which clearly do infringe on freedom of association, do not implicate freedom of expression. Such laws’ aim is to affect association, not the content of messages. Insofar as freedom of expression goes, such laws are merely garden variety Track Two laws, the analysis of which was given in Chapter Two. Freedom of expressive association, the right invoked in Dale, is not part of freedom of expression.
V.