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WHAT IS FREEDOM OF ASSOCIATION, AND WHAT IS ITS DENIAL?

Published online by Cambridge University Press:  02 June 2008

Larry Alexander
Larry Alexander
Affiliation:
Law, University of San Diego
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Abstract

Freedom of association, as I understand it, refers to the liberty a person possesses to enter into relationships with others—for any and all purposes, for a momentary or long-term duration, by contract, consent, or acquiescence. It likewise refers to the liberty to refuse to enter into such relationships or to terminate them when not otherwise compelled by one's voluntary assumption of an obligation to maintain the relationship. Freedom of association thus is a quite capacious liberty.

I am going to approach the topic of freedom of association by attempting to illustrate what its denial would look like in each of several domains. I shall then ask why a government might seek to deny it and then, in the article's final section, on what grounds such a denial would violate the rights with respect to freedom of association of those affected.

Type
Research Article
Information
Social Philosophy and Policy , Volume 25 , Issue 2 , July 2008 , pp. 1 - 21
Copyright
Copyright © Social Philosophy and Policy Foundation 2008

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References

1 Loving v. Virginia, 388 U.S. 1 (1967)Google Scholar.

2 Lawrence v. Texas, 539 U.S. 558 (2003) (striking down as violative of the Fourteenth Amendment a Texas law criminalizing homosexual sodomy)Google Scholar.

3 Jewish Law comes to mind here: “If a man [seeking to avoid his conjugal responsibilities] forces his wife to take a vow to abstain from intercourse, the maximum length of the vow may be two weeks—this according to the School of Shammai. But the School of Hillel says for one week only. Those who are engaged in Torah study, and who are students of the Sages, may leave their wives [i.e., avoid intercourse] for a period of 30 days. Laborers may do so for one week. As for frequency of intercourse: for men of independent means [those that are not working]: every day; for workmen: twice a week; for donkey drivers: once a week; for camel drivers: once a month; for sailors: once every six months. This is the opinion of Rabbi Eliezer.” M. Ketubot 5:6.

Perhaps the most dramatic example of governmental attempts to dictate fine-grained marital duties, both positive and negative, is the Taliban's attempt to enforce its interpretation of Islamic law with respect to marriage, under which women were restricted from being seen by or speaking to men other than their husbands or male relatives. Qu'ran 24:30–24:31. See, e.g., Clark Benner Lombardi, “Islamic Law as a Source of Constitutional Law in Egypt: The Constitutionalization of Sharia in a Modern Arab State,” Columbia Journal of Transnational Law 37 (1998): 81–123Google Scholar; and Bennoune, Karima, “Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression, and Women's Equality under International Law,” Columbia Journal of Transnational Law 45 (2007): 367, 389Google Scholar.

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5 See generally Eichner, Maxine, “Marriage and the Elephant: The Liberal Democratic State's Regulation of Intimate Relationships between Adults,” Harvard Journal of Law and Gender 30 (2007): 25Google Scholar. But see also Brief for American Psychiatric Association as Amicus Curiae supporting Respondent, Boy Scouts of America v. Dale, 530 U.S. 640 (2000), at 13–24, No. 99-699 (March 29, 2000), 2000 WL 339884Google Scholar.

6 Eichner, , “Marriage and the Elephant,” 42–57Google Scholar.

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9 See the cases cited in note 8.

10 Terry v. Adams, 345 U.S. 461 (1953)Google Scholar.

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12 Nonetheless, it is not exactly transparent, after Employment Div., Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990)Google Scholar, how the Supreme Court would find such laws violative of the Constitution—which is not to say that the Court would not find a way to do so.

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

14 See Rubenfeld, Jed, “The New Unwritten Constitution,” Duke Law Journal 51 (2001): 289CrossRefGoogle Scholar; and Mazzone, Jason, “Freedom's Associations,” Washington Law Review 77 (2002): 639Google Scholar. See also Epstein, Richard A., “The Constitutional Perils of Moderation: The Case of the Boy Scouts,” Southern California Law Review 74 (2000): 119Google Scholar. See generally Alexander, Larry, Is There a Right of Freedom of Expression? (Cambridge and New York: Cambridge University Press, 2005), 115–18CrossRefGoogle Scholar.

15 See Katzenbach v. McClung, 375 U.S. 294 (1964)Google Scholar.

16 Compare Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)Google Scholar; Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987)Google Scholar; N.Y. State Club Ass'n v. City of New York, 487 U.S. 1 (1988)Google Scholar, with Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995)Google Scholar; Boy Scouts of America v. Dale, 530 U.S. 640 (2000)Google Scholar.

17 See text at notes 10–11 et seq.

18 See PGA Tour v. Casey Martin, 532 U.S. 661 (2001)Google Scholar.

19 Id. at 691–705.

20 See news stories in Louisville, KY, The Courier-Journal, August 18, 19, 20, 21, 1971Google Scholar; New York Times, January 21, 1972Google Scholar; New York Times, August 19, 2001Google Scholar. The American League president at the time, Al Harridge, immediately banned midgets from the league, a ban that apparently persists to this day.

21 See supra note 19.

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23 See generally Yuracko, Kimberly A., “Trait Discrimination as Sex Discrimination: An Argument Against Neutrality” Texas Law Review 83 (2004): 167Google Scholar. See also Grey, Thomas C., “Cover Blindness,” in Post, R. C., ed., Prejudicial Appearances (Durham, NC: Duke University Press, 2001), 85–97CrossRefGoogle Scholar.

24 After all, employers have convictions—political, religious, and moral—that may conflict with the convictions of their employees. Or they may be providing services to a target group that has convictions at odds with those of the employees. As a consequence, employees may find the work environment quite ideologically uncomfortable. See, e.g., Greenawalt, Kent, “Title VII and Religious Liberty,” Loyola University Chicago Law Journal 33 (2001): 1Google Scholar. Similarly, one set of employees may express views in the workplace that offend another set of employees. See, e.g., Volokh, Eugene, “Freedom of Speech, Religious Harassment Law, and Religious Accommodation Law,” Loyola University Chicago Law Journal 33 (2001): 57Google Scholar.

25 See supra note 23.

26 Sherman Antitrust Act, 15 U.S.C.A. secs. 1–7 (West, Westlaw through 2007 Sess.)Google Scholar.

27 See, e.g., Public Company Accounting Reform and Corporate Responsibility, 15 U.S.C.A. sec. 7211 (West, Westlaw through 2007 P.L. 110-47)Google Scholar.

28 See, e.g., Labor-Management Relations Act, 1947, 29 U.S.C.A. chap. 7Google Scholar.

29 This makes it puzzling why even some of the most ardent supporters of freedom of association make an exception when it comes to commerce. See, e.g., Hager, Mark, “Freedom of Solidarity: Why the Boy Scout Case Was Rightly (But Wrongly) Decided,” Connecticut Law Review 35 (2002): 129Google Scholar.

30 See Alexander, Is There a Right of Freedom of Expression? 165–66.

31 See Alexander, Larry, “Illiberalism All the Way Down: Illiberal Groups and Two Conceptions of Liberalism,” Journal of Contemporary Legal Issues 12 (2002): 625Google Scholar.

32 Brief for Petitioners, Boy Scouts of America v. Dale, 530 U.S. 640 (2000)Google Scholar.

33 See Alexander, Is There a Right of Freedom of Expression? 169.

34 Groups as such are not the objects of concern for liberal redistributionists, and especially not ascriptive groups. If the worst off individual is better off under policy A than under policy B, then the liberal redistributionist would instruct us to choose policy A, even if, say, African-Americans or women as a group fared less well under A than under B. And although it is true that John Rawls, an archetypical liberal redistributionist, referred to a representative of the least well off group as the bellwether for just policies, he was referring to income groups (e.g., the poor), not to ascriptive groups. See generally Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971)Google Scholar. And Rawls's theory is otherwise quite individualistic in its concerns, emphasizing the separateness of persons. Ibid., 22–46.

Moreover, races and ethnic groups are quite artificial constructs. Biologically, human beings are one interbreeding species, with no bright-line biological divisions. Sociologically, races and ethnic groups can be (and are) defined in different ways for different purposes and by different people. See Larry Alexander and Maimon Schwarzschild, “Grutter or Otherwise: Racial Preferences and Higher Education,” Constitutional Commentary 21 (2004): 3Google Scholar; and Alexander, Larry, “Equal Protection and the Irrelevance of ‘Groups,’” Issues in Legal Scholarship (2002), http://www.bepress.com/ils/iss2/art1CrossRefGoogle Scholar.

35 See Yuracko, Kimberly A., “Private Nurses and Playboy Bunnies: Explaining Permissible Sex Discrimination,” California Law Review 92 (2004): 147, 201–12CrossRefGoogle ScholarPubMed.

36 Symposium, “The Rights and Wrongs of Discrimination,” San Diego Law Review 43 (2006): 733Google Scholar; Alexander, Larry, “What Makes Wrongful Discrimination Wrong?” University of Pennsylvania Law Review 141 (1992): 149CrossRefGoogle Scholar.

37 Feinberg, Joel, The Moral Limits of the Criminal Law, vol. 4: Harmless Wrongdoing (New York: Oxford University Press, 1988)Google Scholar.

38 See generally Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986)Google Scholar; and Moore, Michael S., Placing Blame (Oxford: Clarendon Press, 1997), 70, 662–63, 756Google Scholar.

39 See Moore, Placing Blame, 763–77.

40 See Raz, The Morality of Freedom, 380–81, 410–12.

41 Ibid., 418–22.

42 See Alexander, Larry, “The Legal Enforcement of Morality,” in Frey, R. G. and Wellman, Christopher Heath, eds., A Companion to Applied Ethics (Oxford: Blackwell Publishing, 2003), 128–141Google Scholar.