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FREEDOM OF ASSOCIATION IN HISTORICAL PERSPECTIVE

Published online by Cambridge University Press:  02 June 2008

Stephen B. Presser
Stephen B. Presser
Affiliation:
Legal History, Northwestern University School of Law
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Abstract

This paper seeks to examine two conflicting strands in the United States Supreme Court's treatment of “freedom of association,” by exploring some aspects of the historical development of the doctrine. It suggests that there are two conceptions of “freedom of association,” an older, traditional one, that eschews forcing odious contact on members of associations, and a newer one which privileges antidiscrimination doctrines over “freedom from association.” These two conceptions still exist on the Court, resulting in irreconcilable decisions such as those permitting the Boy Scouts to exclude gay scoutmasters, but forcing the Jaycees to accept women. The preference of one conception over the other is also evident in the work of different scholars, whose doctrinal approaches are similarly irreconcilable. The Supreme Court has explained the discontinuities in the doctrine by seeking to characterize it in terms of the First Amendment's “freedom of speech” clause, but the paper argues that it makes more sense, in the context of these two cases, to regard them as related to the First Amendment's “freedom of religion” clauses.

Type
Research Article
Information
Social Philosophy and Policy , Volume 25 , Issue 2 , July 2008 , pp. 157 - 181
Copyright
Copyright © Social Philosophy and Policy Foundation 2008

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References

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7 Jefferson was the third president of the United States, the second vice president, and the first secretary of state. Nevertheless, pursuant to his directions, the only three accomplishments noted on his tombstone were that he was the author of the Declaration of Independence, the author of the Virginia Statute for Religious Freedom, and the founder of the University of Virginia. See, e.g., U.S. Presidents, Profiles: Thomas Jefferson,” http://www.exploredc.org/index.php?id=72Google Scholar.

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11 Holy Trinity Church v. U.S., 143 U.S. 457, 465 (1892).

12 Id. at 466.

13 Id.

14 Id. at 467.

15 Id.

16 Id. at 468.

17 Id. at 469.

18 Id. at 470.

19 Id. at 470–71.

20 Id. at 471.

21 Id.

22 On this point, see the cases and discussion in Presser and Zainaldin, Law and Jurisprudence in American History, 689–726.

23 Thus, in Commonwealth v. Pullis, decided by the Mayor's Court of Philadelphia in 1806, the court held, following English law, that any labor union which sought to raise wages above the prevailing level was a criminal conspiracy, and the court appeared to suggest that any agreement among workers to refuse to work for an employer who hired nonunion labor might also be such a criminal conspiracy. However, in Commonwealth v. Hunt, 45 Mass. (4 Metc.) 111 (1842)Google Scholar, a Massachusetts case decided by the renowned Chief Justice Lemuel Shaw, it was held that it was permissible for union members to insist on a closed shop, because they might be attempting to further laudable endeavors, such as maintaining an alcohol-free workplace. These two cases are reprinted and discussed in Presser and Zainaldin, Law and Jurisprudence in American History, 689–726.

24 As indicated earlier, the United States Supreme Court once noted, after reviewing a plethora of official statements to that effect, that this country was “a Christian nation.” See Holy Trinity Church v. United States, 143 U.S. 457, 471 (1892)Google Scholar. But a little more than a century later, when Mississippi governor Kirk Fordice made the same assertion at a Republican governors' conference, there was an immediate negative reaction from B'nai B'rith. “South Carolina governor Carroll Campbell quickly offered a correction, adding ‘Judeo-’ as a prefix to Christian, but Fordice snapped back that he meant what he said. Fordice later apologized for any offense.” See “Kirk Fordice,” Wikipedia, http://en.wikipedia.org/wiki/Kirk_Fordice (accessed November 19, 2007)Google Scholar. See also “An Apology for ‘Christian Nation’ Remark,” New York Times, November 21, 1992, late edition–final, section 1, page 9: “Gov. Kirk Fordice apologized today for comments in which he pointedly referred to the United States as ‘a Christian nation,’ and the head of the state's largest Jewish congregation said he was satisfied. A number of Jewish organizations had protested the Governor's remarks….”Google Scholar

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27 Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992)Google Scholar.

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34 Wechsler, “Toward Neutral Principles,” 15: “I put it to you that the main constituent of the judicial process is precisely that it must be genuinely principled, resting with respect to every step that is involved in reaching judgment on analysis and reasons quite transcending the immediate result that is achieved.”

35 See, in particular, Frank, Jerome, Law and the Modern Mind (New York: Brentano's, 1930)Google Scholar.

36 See, e.g., Llewellyn, Karl N., The Common Law Tradition: Deciding Appeals (Boston: Little, Brown & Co., 1960)Google Scholar.

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38 These lectures of Hand's were published as Hand, Learned, The Bill of Rights (Cambridge, MA: Harvard University Press, 1958)CrossRefGoogle Scholar.

39 See ibid. On the continuing importance of originalism, see, e.g., Presser, Stephen B., “Reading the Constitution Right: Clarence Thomas's Fidelity to Our Founding Documents Is Making Its Mark on the Supreme Court,” City Journal 17, no. 2 (Spring 2007): 90–97Google Scholar.

40 On the “living Constitution,” see, e.g., Rehnquist, William H., “The Notion of a Living Constitution,” Texas Law Review 54 (1976): 693Google Scholar.

41 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)Google Scholar.

42 Smith v. Allwright, 321 U.S. 649 (1944)Google Scholar. Smith involved a primary which was not conducted by the state, but by private persons. Three years earlier, in U.S. v. Classic, 313 U.S. 299 (1941)Google Scholar, the Supreme Court had held that racial discrimination was impermissible in a primary conducted by the state, but Smith overruled earlier judicial precedent that such discrimination was permissible for a primary not conducted by state officials.

43 Shelley v. Kraemer, 334 U.S. 1 (1948)Google Scholar.

44 For the early view on religion that implied a freedom to discriminate, see, e.g., the Massachusetts Constitution of 1780, supra note 17, which authorized the use of public funds for “public Protestant teachers of piety, religion and morality” (emphasis added), and Chancellor Kent's suggestion, supra note 19, that though the state could punish as blasphemy statements made against Christianity (as Christianity was a part of the common law of New York), this implied no obligation to punish as blasphemy attacks on “those impostors,” “the religion of Mahomet or of the Grand Lama.”

45 Wechsler, “Toward Neutral Principles,” 29–30.

46 Wechsler indicated that he did not favor such parties, but that he could find no constitutional bar to them. Ibid., 29.

47 Wright, “Professor Bickel, the Scholarly Tradition, and the Supreme Court.”

48 The United States Supreme Court, even in the case that compelled the Jaycees to admit women, Roberts v. United States Jaycees, 468 U.S. 609 (1984), has actually recognized that freedom of association, to a certain extent, carries with it freedom to discriminate: “There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire. Such a regulation may impair the ability of the original members to express only those views that brought them together. Freedom of association therefore plainly presupposes a freedom not to associate” (id. at 623).

49 Again, Wechsler suggested that barring political parties based on religion was a result “plainly to be desired,” but not one that he could find support for in neutral principles derived from the Constitution. Indeed, Wechsler stated that it was “easier to project an analysis establishing that such a proscription would infringe rights protected by the first amendment.” Wechsler, “Toward Neutral Principles,” 29.

50 Thus Wechsler defends his argument that freedom of association ought to protect members of one race from associating with members of another simply because they might find such an association “unpleasant or repugnant.” Ibid., 34.

51 Boy Scouts of America v. Dale, 530 U.S. 640 (2000)Google Scholar.

52 For Dale's importance and a liberal-oriented critique of the decision, see two pieces by Koppelman, Andrew: “Should Noncommercial Associations Have an Absolute Right to Discriminate?” Law and Contemporary Problems 67 (2004): 27Google Scholar; and “Signs of the Times: Dale v. Boy Scouts of America and the Changing Meaning of Nondiscrimination,” Cardozo Law Review 23 (2001–2002): 1819Google Scholar.

53 For a listing of many local United Way appeals which have barred the Boy Scouts from participating, see http://grassfire.net/factbox.htm (accessed November 19, 2007).

54 See Wright, “Professor Bickel, the Scholarly Tradition, and the Supreme Court.”

55 Roberts v. United States Jaycees, 468 U.S. 609 (1984)Google Scholar.

56 Bradwell v. State of Illinois, 83 U.S. 130 (1873)Google Scholar.

57 Id. at 140 (Bradley, J., concurring).

58 For criticism of the idiosyncratic nature of O'Connor's jurisprudence, see, e.g., Presser, Stephen B., “A Conservative Comment on Professor Crump,” Florida Law Review 56 (2004): 789Google Scholar; or Presser, Stephen B., Recapturing the Constitution: Race, Religion, and Abortion Reconsidered (Washington, DC: Regnery Publishing Co., 1994)Google Scholar, and sources cited there.

59 Griswold v. Connecticut, 381 U.S. 479 (1965)Google Scholar.

60 Roe v. Wade, 410 U.S. 113 (1973)Google Scholar.

61 “Constitution in Exile” is a term current among constitutional theorists that refers to the U.S. Constitution as construed before 1937, that is, before the United States Supreme Court began much more broadly to construe the commerce clause to permit Congress to legislate in areas of economic regulation which had formerly been reserved to the state and local governments. For descriptions of the “Constitution in Exile” movement, see, e.g., Van Alstyne, William W., “The Constitution in Exile: Is It Time to Bring It in from the Cold?” Duke Law Journal 51, no. 1 (2001)Google Scholar; and “Constitution in Exile,” Wikipedia, http://en.wikipedia.org/wiki/Constitution_in_exile (accessed November 19, 2007)Google Scholar, and sources cited there.

62 For Justice Thomas's view on this issue, see, e.g., Elk Grove Unified School District v. Newdow, 542 U.S. 1, 19 (2004)Google Scholar (Thomas, J., concurring, and indicating that the First Amendment's establishment clause should not be incorporated into the Fourteenth Amendment). For a brief introduction to the debate over incorporation, see, e.g., Curtis, Michael Kent, “Incorporation Doctrine,” in Hall, Kermit, ed., The Oxford Companion to the United States Supreme Court (New York and Oxford: Oxford University Press, 1992), 426–27Google Scholar. One of the best known (although also one of the most controversial) scholarly attacks on the incorporation doctrine is Berger, Raoul, Government by Judiciary: The Transformation of the Fourteenth Amendment, 2d ed. (Indianapolis, IN: Liberty Fund, 1997)Google Scholar.

63 This section of the essay is based in part on Presser, Stephen B., “Was Ann Coulter Right? Some Realism about ‘Minimalism’,” Ave Maria Law Review 5 (2007): 23–46Google Scholar. Sunstein's ideas referred to in the text are developed in Sunstein, Radicals in Robes; and Sunstein, Cass R., “Burkean Minimalism,” Michigan Law Review 105 (2006): 353Google Scholar.

64 See generally Presser, “Was Ann Coulter Right?”; and Coulter, Ann, Slander: Liberal Lies about the American Right (New York: Crown Publishing Group, 2002)Google Scholar.

65 Boy Scouts of America v. Dale, 530 U.S. 640 (2000)Google Scholar. For Koppelman's most recent piece on Dale, see Koppelman, “Should Noncommercial Associations Have an Absolute Right to Discriminate?” For his earlier, more pungent piece, see Koppelman, “Signs of the Times.”

66 Dale, 530 U.S. at 653.

67 Koppelman, “Signs of the Times,” 1820.

68 Ibid., 1819. Contrast with Koppelman's views the view of Northwestern University law professor Martin Redish, in a coauthored piece in which it is argued that the Dale decision was not only right, but didn't go far enough. See Martin H. Redish and Christopher R. McFadden, “Symposium on the Freedom of Expressive Association: HUAC, the Hollywood Ten, and the First Amendment Right of Non-Association,” Minnesota Law Review 85 (2001): 1669.

69 Koppelman, “Signs of the Times,” 1819.

70 Ibid., 1824–25.

71 Ibid., 1830.

72 Ibid., 1831, quoting from a 1950 Senate Report making these points.

73 Ibid., 1832.

74 Ibid., 1833.

75 Ibid., 1835.

76 Ibid., 1838.

77 Ibid.

78 See Section II above.