Article

The Unsettling ‘Well-Settled’ Law of Freedom of Association

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Abstract

This article brings historical, theoretical, and doctrinal critiques to bear upon the current framework for the constitutional right of association. It argues that the Supreme Court’s categories of expressive and intimate association first announced in the 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. Intimate association and expressive association are indefensible categories, but they matter deeply. They matter to the Jaycees. They matter to the Chi Iota Colony of the Alpha Epsilon Pi fraternity, a now defunct Jewish social group at the College of Staten Island that had sought to limit its membership to men. They matter to the Christian Legal Society at Hastings Law School, a student group denied official recognition because of its desire to limit its membership to Christians who adhered to its moral code (which included a prohibition on homosexual conduct). Each of these groups sought to maintain an unpopular composition and message in the face of anti-discrimination laws. Each was denied associational protections. Each was forced to change its composition – and therefore its message. Each no longer exists in the form it once held and desired to maintain. The Roberts categories of intimate and expressive association are at least partly to blame. They set in place a framework in which courts sidestep the hard work of weighing the constitutional values that shape the laws that bind us. This article exposes the problems inherent in these categories and calls for a meaningful constitutional inquiry into laws impinging upon group autonomy. It suggests that the Court eliminate the Roberts categories and turn instead to the right of assembly. Our right to assemble—to form relationships, to gather, to exist as groups of our choosing—is fundamental to liberty and diversity.

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supra note 15, at 568. By " fit, " I refer to the ways in which assembly falls plausibly within our tradition of American constitutionalism. The notion of fit is intimated in different ways by both Ronald Dworkin and Alasdair MacIntyre
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267 Inazu, Forgotten Freedom, supra note 15, at 568. By " fit, " I refer to the ways in which assembly falls plausibly within our tradition of American constitutionalism. The notion of fit is intimated in different ways by both Ronald Dworkin and Alasdair MacIntyre. See generally RONALD DWORKIN, LAW'S EMPIRE (1986);
268 Philip Bobbitt has suggested that we engage in six modalities of constitutional argument: textual, structural, prudential, historical, doctrinal, and ethical), concurring). The decision was formally overruled in Brandenburg v. Ohio
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268 Philip Bobbitt has suggested that we engage in six modalities of constitutional argument: textual, structural, prudential, historical, doctrinal, and ethical). PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION xi, 7–8 (1982). 269 274 U.S. 357 (1927) (Brandeis J., concurring). The decision was formally overruled in Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam).
113 On the emergence of segregated private schools in the late 1960s and early 1970s, see, for
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113 On the emergence of segregated private schools in the late 1960s and early 1970s, see, for example, DAVID NEVIN AND ROBERT E. BILLS, THE SCHOOLS THAT FEAR BUILT: SEGREGATIONIST ACADEMIES IN THE SOUTH (1976).
The libertarian right to exclude, then, is racist at the core
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approach. See KOPPELMAN & WOLFF, supra note 6, at 6 ( " The libertarian right to exclude, then, is racist at the core. " ). 183 468 U.S. at 621. 184 410 U.S. 431 (1973). 185 396 U.S. 229 (1969). 186 395 U.S. 298 (1969).