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