In Roberts v. U.S. Jaycees, the Supreme Court recognized intimate association as one of the two distinct senses of the freedom of association. In doing so, the Court identified two essential functions that justify constitutional protection for the relationships that provide them: intimate relationships cultivate and transmit shared ideals and beliefs, and they provide opportunities for emotional enrichment and self-identification by facilitating the creation of close bonds among members. Then, recognizing that familial relationships often exemplify these functions, the Court identified four aspects of family relationships that would help distinguish intimate from nonintimate associations: size, purpose, selectivity, and seclusion from others. Despite the secondary role of these aspects, subsequent decisions have focused solely on these four characteristics without even mentioning the justifications that originally supported constitutional protection. This factor-based analysis has resulted in unpredictable and inconsistent decisions that threaten to undermine the legitimacy of the entire Roberts framework. Drawing from the original functional justifications, this Note argues that courts must abandon their sole reliance on the Roberts factors and instead adopt a functional analysis that properly appreciates the right’s underlying values and ensures that groups reflecting those values are consistently protected.
Joshua P. Roling,
Functional Intimate Association Analysis: A Doctrinal Shift To Save the Roberts Framework,
61 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol61/iss4/3