Freedom of Association

Chapter One

FREEDOM OF ASSOCIATION: AN INTRODUCTORY ESSAY

AMY GUTMANN

AMERICANS, Alexis de Tocqueville observed, are forever forming associations. The associations are of many different types. They are not only commercial and industrial organizations that are necessary for a functioning economy but also religious, moral, serious, futile, very general and very limited, immensely large and very minute. Churches, synagogues, and mosques, colleges, universities, and museums, corporations, trade unions, and lobbying groups, sports leagues, literary societies, sororal and fraternal orders, environmental groups, national and international charitable organizations, and self-help groups, parent-teacher associations, residential associations, and professional associations together make a significant difference in the lives of many Americans and in the life of American democracy. Nothing, Tocqueville concludes, deserves more attention. ¹

Surveying the subject over a century later, we begin with the observation that the value and limits of free association in the United States have not received the attention they deserve. Freedom of speech, for example, has received vastly more attention from moral and political philosophers than has freedom of association. American culture correspondingly offers a far richer sense of the value and limits of free speech than it does of the value and limits of free association. The neglect of the values of free association even weakens our understanding of free speech because organized association is increasingly essential for the effective use of free speech in the United States. Without access to an association that is willing and able to speak up for our views and values, we have a very limited ability to be heard by many other people or to influence the political process, unless we happen to be rich or famous.

Freedom of association is valuable for far more than its instrumental relationship to free speech. Freedom of association is necessary to create and maintain intimate relationships of love and friendship, which are valuable for their own sake, as well as for the pleasures that they offer. Freedom of association is increasingly essential as a means of engaging in charity, commerce, industry, education, health care, residential life, religious practice, professional life, music and art, and recreation and sports. Any serious consideration of the activities on this list will indicate that not all the aims of associational activities are equally valued by individuals, or equally important for the well-being of a liberal democracy. But all are valued and valuable, and associational freedom is not merely a means to other valuable ends. It is also valuable for the many qualities of human life that the diverse activities of association routinely entail. By associating with one another, we engage in camaraderie, cooperation, dialogue, deliberation, negotiation, competition, creativity, and the kinds of self-expression and self-sacrifice that are possible only in association with others. In addition, we often simply enjoy the company. The pleasures of association are typically byproducts of our associating for other reasons.

To appreciate the full value of associational freedom, we need to look beyond the explicit purposes that specific associations serve. The primary and explicit aim of most religious congregations is spiritual. But many congregations in the United States also serve important civic and political purposes that do not violate the constitutional prohibition on establishment of religion. My parents never doubted that they would join a Jewish congregation when they settled in the small town of Monroe, New York. But they had to decide whether to join an established congregation outside the town (since there was no congregation in Monroe) or to create a new congregation in Monroe with the dozen or so other newly arrived Jewish families, many of them first-generation Americans. I remember having been told as a child by my parents—my father a German Jew who had recently moved to the United States after living in India for fourteen years and my mother a New Yorker—that they had decided to undertake the task of building a new congregation because, without a local place of worship, Jews would not be treated as first-class citizens in a predominantly Protestant town. Nor would my parents have felt that Monroe was their hometown had they not established a Jewish congregation there. The new Jewish settlers in Monroe were not unusual in valuing their religious association for civic and political purposes as well as spiritual and personal ones. The primary purpose of an association, as this example illustrates, does not exhaust its value either for individuals or for liberal democracies.

The essays in this book explore the many values of associational freedom in a liberal democracy, as well as the moral and constitutional limits of claims to associational freedom. One book cannot possibly give this subject the attention it deserves. But the authors who have joined together to create this volume hope to give the subject more prominence and to encourage others to pursue many of the important issues regarding the value and limits of free association in the United States. Why is freedom of association valuable for both the lives of individuals and the life of a liberal democracy? What associations have the strongest moral and constitutional claims to freedom from political interference with their policies? The weakest? Which associations have claims to positive support from government? What are the most defensible grounds for protecting free association? For limiting it?

Recently there has been a revival among scholars of concern about associational life in the United States. The political scientist Robert Putnam reports that a decreasing proportion of Americans have been joining traditional associations such as churches and synagogues, trade unions and civic groups, parent-teacher associations and even bowling leagues, while an increasing proportion have been joining self-help groups, radical religious sects, and other traditionally less mainstream associations. Social scientists are addressing the empirical questions of who is joining which secondary associations with what social and political consequences. It is equally important that moral and political philosophers address the ethical questions of the value of freedom of association, its relationship to other important values that are essential to liberal democracy—including freedom of expression, religion, and conscience, economic opportunity, nondiscrimination, and civic equality—and the limits on freedom of association that are justifiable in light of these values. Without a more extensive examination of both sets of questions, we cannot responsibly decide whether or how to pursue the increasingly popular suggestion of encouraging more associational life in this country. Are all kinds of associational life worthy of encouragement? If not, which kinds? By whom? Defensible answers to these normative questions depend in large part on our understanding the value and limits of freedom of association in our contemporary context.

Are all kinds of associational life worthy of encouragement in a liberal democracy? The land of secondary associations is sometimes called civic space. Some of the essays in this book warn against assuming that the label civic necessarily has positive moral content when it is applied to particular secondary associations. Although the Ku Klux Klan is a civic association, does it serve the positive civic functions that secondary associations in general are credibly said to serve? Putnam identifies these functions as follows:

In the first place, networks of civic engagement foster sturdy norms of generalized reciprocity and encourage the emergence of social trust.... When economic and political negotiation is embedded in dense networks of social interaction, incentives for opportunism are reduced. . . . Finally, dense networks of interaction probably broaden the participants’ sense of self, developing the I into the we, or (in the language of rational-choice theories) enhancing the participants’ taste for collective benefits.²

Among its members, the Ku Klux Klan may cultivate solidarity and trust, reduce incentives for opportunism, and develop some I’s into a we. But the solidarity and trust, the limits on opportunism, and the we cannot be characterized as fostering sturdy norms of generalized reciprocity. Quite the contrary; the associational premises of these solidaristic ties are hatred, degradation, and denigration of fellow citizens and fellow human beings. By contrast to the positive contributions that many civic associations make to putting a moral principle of reciprocity into practice, the Ku Klux Klan stands for the undermining of reciprocity. It encourages social distrust, increases incentives for white citizens opportunistically to take advantage of black citizens, and endorses a racially exclusive sense of self’ among participants, thereby weakening participants’ taste" for generalized collective benefits in society. Although the Ku Klux Klan is a civic association, its pursuits undermine rather than foster reciprocity among a diverse citizenry.

May a liberal democratic government distinguish in its policies between those civic associations that do and those that do not foster reciprocity among a diverse citizenry? Reciprocity is a general value of liberal democracy that informs more specific values, such as racial nondiscrimination.³ Liberal democratic governments should distinguish in their policies between associations that discriminate on grounds of race and others that do not. In Bob Jones University v. United States, the Supreme Court rightly upheld the Internal Revenue Service’s denial of tax-exempt status to Bob Jones University on grounds that Bob Jones practiced racial discrimination and was therefore disqualified as a charitable institution, even though its discriminatory policy (of prohibiting interracial dating among its students) was based on a sincere religious belief that the Bible forbids miscegenation. The state may justify a limitation on religious liberty, Chief Justice Burger argued, by showing that it is essential to accomplish an overriding governmental interest.⁴ After finding that Congress authorized the IRS policy, the Supreme Court reasonably concluded that overcoming racial discrimination in education is a compelling governmental interest, sufficient to override a religiously run university’s claim to free exercise of religion. The Bob Jones decision serves as an example of one legitimate (and extremely powerful) way in which a constitutional democracy may favor associations that foster reciprocity in the form of racial nondiscrimination above those that do not. The government may deny—indeed it should deny—tax exemption to those secondary associations that discriminate on the basis of race.

Had Bob Jones been a secular university, the case would have been more one-sided in favor of denying tax exemption. A secular university would have lacked a constitutional claim as strong as the free exercise of religion to put forward against the government’s interest in overcoming racial discrimination in education. Although associational freedom generally speaking is enormously valuable—indeed, it is essential for providing the opportunity to individuals to live a good life and for constituting a just society—not every example of its exercise can therefore be claimed as a moral or constitutional right. Something similar can be said about individual freedom more generally. Freedom is essential to living a good life but it would be misleading to elevate it, without any further qualification, to the level of a moral or constitutional right.

Suppose that Bob Jones had been not a university but a church, and Bob Jones Church had claimed a right to forbid miscegenation among its congregants. A primary purpose of any university, by virtue of its being a university, is that it directly serves the social function of contributing to a system of fair educational opportunity in this society in a way that a church need not, by virtue of its being a church. Colleges and universities are educational gatekeepers to the professions and to other scarce and highly valued social offices that require advanced educational credentials.⁵ Churches serve largely different social purposes. The claims of a Bob Jones Church with a religiously based policy of forbidding miscegenation among its congregants would have been significantly stronger relative to the state’s claims in combating racial discrimination than were the similarly based claims of Bob Jones University. Liberal democracies legitimately depend on universities for providing fair educational opportunity in a way that they do not (and should not) depend on churches, because the primary purpose of churches is spiritual, not educational or economic. The state’s claim is therefore far stronger vis-à-vis a university than it is vis-à-vis a church. The claims of a Bob Jones Church to discriminate on grounds of race therefore might be overriding as the claims of Bob Jones University are not. In the case of the church, the state could not as clearly claim to have a compelling interest in regulation as a direct means of securing educational and economic opportunity that is free from racial discrimination.

Were we to suppose yet another slightly different set of facts—a Bob Jones Church that discriminates on racial grounds in hiring its office staff, which carry out the secular functions of the church (such as maintaining the building and paying bills)—then a government’s grounds for regulation may once again become compelling and capable of overriding the competing claim of free association. In its role as employer of office staff, a church directly contributes to the system of economic opportunity and does so in a way that may be sufficiently disconnected from its religious missions that the state may legitimately claim a compelling interest in enforcing the principle of racial nondiscrimination.

The case becomes morally and constitutionally different yet again if the church discriminates on racial grounds only in religious offices, but not in its secular offices. After comparing the moral and constitutional claims of churches with those of secular associations, Kent Greenawalt concludes that what gives churches greater claims to associational freedom from state interference than other associations is not primarily their lesser impact on the basic opportunities of individuals. Rather, it is the churches’ greater claim to freedom from state interference based on their transcendental or spiritual purposes. The closer the church’s discriminatory policy is to the core of its internal spiritual practices, the stronger its claims to noninterference based on its distinctively religious (or at least spiritual) associational purposes. When a church engages in secular educational and economic activities, however, which can be separated from its spiritual activities, its claims to discriminate in those secular activities as its belief system dictates weakens.

What about the claims to be free from compelled association that are made by associations that are not primarily religious or spiritual, but whose purposes are nonetheless socially valuable? Many of the most morally important and intellectually challenging issues regarding the extent and limits of free association arise when a secular association with valuable social purposes has policies of restrictive membership or restrictions on membership that are objectionable from the perspective of constitutional democracy. The landmark Supreme Court case of Roberts v. United States Jaycees, decided in 1984, presents just such a case, and the opinions of Justices Brennan and O’Connor in Roberts offer an excellent starting point for analyzing the values at stake in conflicts concerning the freedom of primarily secular associations.⁶

Before Roberts was decided, the national Junior Chamber of Commerce, commonly known as the Jaycees, by its charter did not permit women to become full members. In the early 1980s, the Minnesota Department of Human Rights invoked Minnesota’s Human Rights Act in support of the decision by the St. Paul and Minneapolis Jaycees to admit women as full members, rather than as only associate members (as was permitted by the national Jaycees charter). The Minnesota Human Rights Act states that it is an unfair discriminatory practice ... [t]o deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex.⁷

Writing for a unanimous court, Justice Brennan distinguishes between intimate and nonintimate associations, and argues that intimate associations need to be treated separately from nonintimate associations for the purposes of determining the limits of state interference. Although Justices Brennan and O’Connor differ in their analyses in some significant ways (which are explored in the contributions of Kent Greenawalt, George Kateb, and Nancy Rosenblum to this volume), they agree that the rights of intimate associations are irrelevant for the case at hand. Whatever the precise scope of the rights recognized in such cases [of intimate relationships], Justice O’Connor writes in her concurring opinion, they do not encompass associational rights of a 295,000-member organization whose activities are not ‘private’ in any meaningful sense of that term (631). Were the Jaycees like a reading group of friends, then its claim to limit its membership to men would have been compelling. But the Jaycees meets none of the Court’s criteria of an intimate association. It is not relatively small; it does not employ a high degree of selectivity in decision to begin and maintain the relationship; it does not require seclusion from others in critical aspects of the relationship; and congeniality is not essential to its purpose. Quite the contrary: the Jaycees is very large and unselective in admitting young men; it carries out its operations with substantial intermingling of men and women members; and congeniality is not a primary purpose of the association. The Junior Chamber of Commerce, as its name suggests, is, first and foremost, an organization that, at both the national and local levels, promotes and practices the art of solicitation and management (639).

What is the constitutional basis of this distinction between intimate associations, whose constitutional claims to freedom from outside interference are second to none, and nonintimate associations? Although freedom of association is never mentioned in the United States Constitution, it is implicated in two central places. The First Amendment protects the free exercise of religion, speech, and the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. First Amendment protection does not apply in any special way to intimate associations, but rather to religious and expressive associations, those that are instrumental in enabling citizens to exercise their rights of religious freedom, free speech, freedom of assembly, and freedom to petition and criticize government. The Fourteenth Amendment has been interpreted to provide the protection of a zone of privacy to intimate association, by virtue of its due process clause, which prohibits depriving any person of life, liberty, or property, without due process of law. None of these protections amounts to absolute freedom from interference by government for intimate, expressive, or religious associations. But each points to a general type of association that warrants special constitutional protection by virtue of its primary character (intimate or religious) or primary purposes (free expression) that is not available to all types of association. The challenging issues concerning associational freedom that are the focus of this volume all lie between the extremes of absolute protection from outside interference with an association’s activities and no protection. In exploring the moral, political, and constitutional territory between these extremes, we need to consider the character of the association and the primary purposes that will be served and stymied by outside interference.

To identify more clearly the territory explored in this volume, we need to extend the mapping of associational life in a different direction from that offered in either Brennan’s or O’Connor’s opinion in Roberts. At the other extreme from the intimate or primary associations of family and friends lie tertiary associations that are distant from their members in their daily operations, such as centralized lobbying organizations like the American Association of Retired Persons (AARP) and the National Organization for Women (NOW) and centralized charitable organizations like Amnesty International and Oxfam. Tertiary associations carry out their purposes without involving many of their members in regular, face-to-face associational activities. Between primary and tertiary associations lie secondary associations like the Jaycees, whose central functions entail bringing members together in local chapters for regular meetings and cooperative activities. It is not the size or importance of the association but the centrality and extent of cooperative membership activity that distinguishes secondary associations like the Jaycees from tertiary associations like the AARP and Amnesty International.

Secondary associations like the Jaycees are conventionally called voluntary. But we need to be careful, as Michael Walzer warns in his essay, not to misinterpret what it means to call an association voluntary. To the extent that individuals enjoy freedom of association in a liberal democracy, we are free to form secondary associations and to exit them, but not to enter just any association of our choice at will. The freedom to associate necessarily entails the freedom to exclude, and therefore limits our freedom of entry. If I can enter any association of my choice, then you have no freedom not to associate with me. A requirement of open membership would undermine the value of many secondary associations and destroy any meaningful sense of freedom of association as it applies to secondary associations. There can be no clearer example of an intrusion into the internal structure or affairs of an association, Justice Brennan writes in Roberts, than a regulation that forces the group to accept members it does not desire. . . . Freedom of association . .. plainly presupposes a freedom not to associate (623).

Because freedom of association is neither morally nor constitutionally absolute, we cannot conclude that an intrusion into the internal structure is unjustified before we evaluate the purposes of the intrusion and compare the merits of intrusion with those of nonintrusion into an association’s internal structure or affairs. We cannot claim a presumption in favor of a right to exclude or a presumption in favor of a right not to be discriminated against without begging the question: which side carries the weight of argument in cases of conflict between the values of free association and those of nondiscrimination? There is no neutral default position in cases of conflict. In his opinion in Roberts, Justice Brennan recognizes, in constitutional terms, first the moral burden and then the moral value of state intrusion into the internal life of a large secondary association. Brennan concludes for a unanimous Court that a compelling state interest in securing nondiscrimination for women justifies state intrusion into the structure of the national Jaycees. The essays by Kateb and Rosenblum in this volume present powerful arguments against the Court’s conclusion. What more can be said on the Court’s side?

Critics and defenders of the Court’s decision in Roberts share an important point of agreement concerning associational freedom. When the primary purpose of an association is expression of a point of view—whether it be religious or secular—then its freedom to select members consistently with its expressive purposes is essential to its members’ exercise of free speech through the association. A government that regulates the membership of a church or a political club or a social advocacy group in a way that defies its expressive purposes is also regulating its members’ speech, unjustifiably and unconstitutionally so, no matter how morally misguided or factually mistaken the government may rightly believe the association’s message to be. Any meaningful right to free speech must protect associations whose primary purpose is expressive from political interference in their membership policies insofar as that interference is directly related to its expressive purposes. To regulate the membership of an expressive association against those purposes is to tell that association’s members to change their expression, which is tantamount to outlawing the expressive association. If anything constitutes a clear violation of the right of free speech, this kind of intrusion in an expressive association certainly does. Not to recognize this right of expressive associations to choose their members is not to recognize how essential expressive associations are to free speech. Without the right to associate in order to express our points of view, we are increasingly powerless to speak in a way that we can be heard by many others. Protection of the association’s right to define its membership, O’Connor writes in Roberts, derives from the recognition that the formation of an expressive association is the creation of a voice, and the selection of members is the definition of that voice (633). Justice Brennan agrees, as do all the contributors to this volume.

Although many secondary associations are primarily expressive, many are not. The Jaycees is among those associations that are not primarily expressive. Both the Minnesota Supreme Court and the United States District Court, O’Connor notes, ... made findings of fact concerning the commercial nature of the Jaycees’ activities. The Court of Appeals, which disagreed with the District Court over the legal conclusions to be drawn from the facts, did not dispute any of these findings (639). Were the Jaycees primarily expressive, and were its expression related in some nonarbitrary way to its membership policy, then the national Jaycees would (and should) have won their challenge to the St. Paul and Minneapolis chapters’ insistence on their right to admit women as full members, and to the claim by the Minnesota Department of Human Rights that the national Jaycees were legally obligated to admit women as full members in all their Minnesota chapters. But the Jaycees was and is not primarily an expressive association, even though advocacy of political and public causes is a not insubstantial part of what it does.⁸ The same may be said of most large commercial associations, such as profit-making companies, but laws protecting nondiscrimination would clearly be ineffectual were the Court to exempt any association for which advocacy of political and public causes is a not insubstantial part of what it does. Most corporations would thereby become exempt from nondiscrimination laws, and for some of the same reasons as the Jaycees would be on the critics’ analysis. To say that an association engages in political expression as one among its many activities therefore cannot suffice to exempt it from the constraint of nondiscrimination.

Because so many associations have some expressive purposes, in order adequately to respect values such as fair opportunity that often compete with freedom of association, it is important to distinguish between those associations whose primary purpose is expressive and those whose primary purpose is not. If the presence of any expressive purposes by an association triggers the same right to freedom from outside interference that a primarily expressive association can morally and constitutionally claim, then a democratic government would be unable to secure even the imperfect degree of fair opportunity for members of historically disadvantaged groups that now exists in United States. Just as free expression is an important civic value in a liberal democracy, so is nondiscrimination on the basis of race, color, creed, religion, disability, national origin, or sex. Both values are constitutionally protected, and neither can justifiably be elevated to absolute priority over the other.

Unjustified discrimination by secondary associations warrants criticism even in situations where it does not warrant state interference. Greenawalt offers the example of a small secular country club that does not admit Jews basically because they are Jews. State intrusion into the membership policies of private associations, as Rosenblum argues, is often worse than the prejudice that it is intended to combat. It may also be counterproductive in some cases. What Rosenblum aptly calls the logic of congruence—a logic that requires government to enforce liberal democratic principles of inclusion on secondary associations with primarily private purposes—is as indefensible as what might be called the logic of incongruence: a logic that prohibits government from enforcing liberal democratic restrictions on secondary associations with primarily public purposes. The difficult issues concerning the competing values of free association and nondiscrimination lie between these two indiscriminatory positions.

An important part of the controversy concerning the Roberts decision centers on what kind of association should count as private or public for the purposes of state enforcement of nondiscriminatory membership. A small exclusive country club, whose activities consist of golf, tennis, swimming, and socializing, is private in a way that the Jaycees is not. But whether the Jaycees should be counted as a public association is still subject to reasonable disagreement. Its effects on economic opportunity are uncertain. But this uncertainty does not justify noninterference any more than it justifies interference since there is no neutral default position, of state interference or noninterference. Both associational freedom and nondiscrimination are significant civic values in a liberal democracy, and neither conclusion (to interfere or not to interfere) can be justified by way of a presumption (for or against interference).

Another important part of the controversy about enforcing nondiscriminatory membership policies on secondary associations focuses on claims about the spillover effects into public life of discrimination in private life. Even if the members [of a country club that discriminates against Jews] assure us that they will extend equal respect to Jews in political and commercial life, Greenawalt writes, we must doubt whether most people are capable of such a sharp dichotomy between semiprivate social life and public life. If it is said the state is powerless to change such attitudes, the answer is that bastions of social exclusion perpetuate attitudes within and across generations. Rosenblum writes in response to advocates of the logic of congruence that moral psychology is more complex than this. . . . Discrimination condoned in one sphere is not necessarily condoned, or exhibited, in all or any others. Rosenblum’s observation that there are various reasons for discrimination, not just one reason that applies uniformly in all situations, suggests the need for the kind of detailed arguments that Greenawalt offers, arguments that distinguish among the purposes of different kinds of associations, and among the different grounds that associations can legitimately claim for discrimination. Under one defensible interpretation of the Fourteenth Amendment, women and other members of disadvantaged groups that have historically been subject to discrimination need not be relegated to the status of second-class citizens in order to claim equal protection of the laws against discrimination by associations whose primary activities promote educational, economic, or political opportunities.

Critics and defenders of the Court’s decision in Roberts agree that a primary purpose of the Jaycees is leadership training in business and commerce. Whether these training activities of the Jaycees have actually substantially increased the economic opportunities of young men is subject to reasonable disagreement; as often is the case, the empirical evidence is uncertain. A federal system of government permits this reasonable disagreement, based partly on unavoidable empirical uncertainty and partly on unavoidable moral uncertainty, to manifest itself in various state laws and various applications of those laws, as long as those laws fall within a range of reasonable disagreement. The Minnesota Human Rights Act and its application in Roberts can be seen as falling within the range of reasonable disagreement that it is the virtue of a federal system to recognize.

The Human Rights Act defines as a place of public accommodation, subject to the antidiscrimination statute, a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.⁹ The Minnesota Supreme Court concluded that the Jaycees qualified as a place of public accommodation under this statute. This conclusion can be seen as reasonable, even if controversial. The Jaycees are primarily engaged in selling the goods of leadership skills and in extending the privileges and advantages of business contacts and employment promotions to its members. It operates at fixed sites and therefore qualifies as a facility (as do privately owned restaurants and apartment houses), and it qualifies as a public association insofar as it solicits and recruits young men as members very unselectively. (A primary criterion of success for members is the successful solicitation of new young male members. Apart from age and sex, Brennan writes for the Court, neither the national organization nor the local chapters employ any criteria for judging applicants for membership, and new members are routinely recruited and admitted with no inquiry into their backgrounds.) (621).

Critics and defenders of the Court’s decision reasonably disagree about whether the goods, privileges, and advantages available by virtue of membership in the Jaycees are or are not sufficiently connected to economic, social, and political opportunities to warrant classifying the Jaycees as a public accommodation. The Jaycees need not be the exclusive source of economic, social, and political opportunities in a community—any more than a restaurant or apartment house need be the exclusive source of a meal or a home—to qualify as a public accommodation. Although the Jaycees did not have a monopoly on local civic associations, they were by virtue of their history and resources in many local communities the dominant, highstatus civic association whose purpose was to train young men seeking to enter the economic life of the community. Women were (and are) of course free to create and join their own civic associations in which women would be eligible for regular membership. But it is highly unlikely that a new civic association for women would have social, economic, or political influence comparable to that of the well-established Jaycees.

To sustain the decisions of the Minnesota Human Rights Department and the Minnesota Supreme Court on constitutional grounds, the United States Supreme Court did not need to claim that excluding women from full membership in the Jaycees relegated them to second-class citizenship. Rosenblum rightly warns us not to confuse second-class membership in a civic association with second-class citizenship in the state. Keeping this distinction in mind, the Minnesota Department of Human Rights could still legitimately conclude that the local Jaycees chapters were acting morally and also within their constitutional rights to admit women as full members under the Minnesota Human Rights Act, which prohibits gender discrim¡nation in public accommodation. Not to admit women as full members may reasonably be thought to deprive young women of economic and social opportunities that should be available to them, as long as they are so indiscriminately made available to young men, even if women would not be relegated to second-class citizenship simply by virtue of being excluded from full membership.

In determining whether the second-class membership of women in the Jaycees deprives young women of significant economic opportunities that the Jaycees makes available to young men, the Minnesota Department of Human Rights, the Minnesota Supreme Court, and the United States Supreme Court rely on the Jaycees’ own public account of its associational purposes and accomplishments. The organization, O’Connor writes:

claims that the training it offers its members gives them an advantage in business, and business firms do indeed sometimes pay the dues of individual memberships for their employees. Jaycees members hone their solicitation and management skills, under the direction and supervision of the organization, primarily through their active recruitment of new members. . . . Recruitment and selling are commercial activities, even when conducted for training rather than for profit. (640)

The State of Minnesota, O’Connor concludes, has a legitimate interest in ensuring nondiscriminatory access to the commercial opportunity presented by membership in the Jaycees (641). O’Connor then opens her argument to unnecessary misinterpretation when she adds that [t]he Jaycees’ First Amendment challenge to the application of Minnesota’s public accommodations law is meritless. There are credible First Amendment claims that even commercial associations can make, but those claims are not overriding against a state’s interest in keeping the channels of commerce free of gender (and other forms of) discrimination.

Even if Roberts was decided on defensible moral and constitutional grounds, the central argument of Rosenblum’s essay still holds: a liberal democracy should not insist on congruence between its principles of nondiscrimination and the policies that govern the internal life of all secondary associations. Even if churches, fraternities, country clubs, and various other secondary associations that discriminate on grounds of race or gender are morally wrong to do so, we can consistently defend their constitutional right to discriminate if (and only if) they do not thereby interfere with anyone’s basic liberties or opportunities. A small country club that excludes Jews or women would (and should) not be subject to Minnesota’s Human Rights Act. Nor would a church that allows only men to hold church offices. We need not think these discriminations are morally benign to conclude that the state should not regulate the membership of these associations. Nor need we think that the state should not regulate the memberships of any secondary associations to exempt some from compelled association.

The term freedom of association does not appear in the United States Constitution, and the Constitution does not readily lend itself to a defense of a general right to freedom of association. Yet freedom of association, suitably qualified, is surely an essential part of individual freedom. It is, as George Kateb writes, integral to a free human life, to being a free person. Picking one’s company is part of living as one likes: living as one likes (provided one does not injure the vital claims of others) is what being free means. Freedom of association resembles freedom of speech in this sense. Speaking one’s mind is part of living as one likes; living as one likes (provided one does not injure the vital claims of others) is what being free means. Freedom of association may be limited for the same kind of reason that freedom of speech may be: it can conflict with other vital claims. Associating with others for the purpose of arson is no more justifiable (or constitutionally protected) than falsely shouting fire in a crowded theater. Not all kinds of associations, as this example indicates, are integral to being a free person, let alone to living a good human life. As both critics and defenders of Roberts agree, specific rights to free association are implicated in the First and Fourteenth Amendments.

Freedom of association cannot exist without constraints on that freedom in the form of exclusions. In the context of a society where women are still systematically relegated to lower status positions in the economy than equally talented and motivated men, there is more to be said in favor of expanding the associational freedom of (some) women even at the cost of contracting that of (some) men when the association at issue is primarily commercial in its purposes, rather than expressive, religious, or private in its purposes or intimate in its character.

Far more than the associational freedom of some men would have been morally at stake, however, were the national Jaycees a religious group whose fundamental convictions would be violated by requiring regular membership for women. Greenawalt’s essay carefully defends, on both constitutional and moral grounds, the proposition that freedom of religious association warrants more protection than freedom of (some) other forms of association. A church’s claim to enforce a two-tiered membership policy on its Minnesota branches would be stronger than that of the national Jaycees. Why? Not because discrimination against women by churches is less likely to have a detrimental effect on the equal status or even the economic, educational, and political opportunities of women in the United States, Greenawalt argues, but rather because respecting the freedom of churches to discriminate in this way may be necessary to respect the fundamental (and often transcendental) moral convictions of its members as expressed through their church, whose primary purpose is spiritual.

The first part of this book focuses on the value of associational freedom (and the limits of its value) in the lives of individuals. But associational freedom also has civic value, which is the focus of the second part of the book. (Most of the essays address both sets of issues.) The viability and vibrancy of liberal democracy depend in many morally important ways on the associational activities of its citizens. Shorn of associational activities, the United States would not only be unlivable for most of us as individuals, it would also be unviable as a liberal democracy. The claim that associational activities of all sorts are essential to the health of liberal democracy is more controversial than the claim that associational freedom is an essential part of individual freedom. Whereas the relationship between freedom of association and individual freedom is analytical,¹⁰ the relationship between freedom of association and various values of liberal democracy is a partly empirical, partly moral claim. Many values of liberal democracy are put in jeopardy to the extent that citizens either are not free to join secondary associations or fail to take full advantage of their freedom. Among those values that are thought to be jeopardized by a decline in associational life are economic development, the physical safety of citizens, the efficient and effective performance of government, the ability of citizens to support themselves without unnecessary public assistance, the willingness of citizens to help those who are in need or to support a government that helps those in need, and even the stability of liberal democracy itself.

What is the relationship between laws and policies that govern our use of associational freedoms and the well-being of liberal democracy? Just as our individual use of associational freedom is typically two-edged (we choose to associate with some people by excluding others), so too the role of government in fostering or regulating associational freedom is twoedged. A government that is constitutionally dedicated to liberal democratic principles has a strong interest in supporting a vast assortment of associational activities among its citizens. But it also has a strong interest in regulating associations so that they support a liberal democratic form of government and public policies that are consistent with liberal democratic principles.

Although many associational activities in America are clearly and directly supportive of liberal democracy, others are not so clearly or directly supportive, and still others are downright hostile to, and potentially destructive of, liberal democracy. Some associations, left free to determine their own affairs, will operate in ways inimical to liberal democratic values—for example, by discriminating against blacks and drilling members in the violent overthrow of lawful government. Should governments decide to regulate and support associations according to whether or not they support liberal democratic values? A policy of tax exemption for charitable institutions must be based on some understanding of what should count as a charitable institution. By its very nature, the politically operative understanding of charitable cannot be morally neutral. Granting or denying tax exemption as a charitable institution to a university that prohibits miscegenation requires a moral judgment. We cannot avoid trying to answer the moral question of which is the more defensible basis for governmental action.

Addressing the civic value of secondary associations requires a response to several substantially different questions about the relationship between associational freedom and liberal democracy. One question is whether the stability of liberal democratic government depends on citizens’ joining secondary associations that express, teach, or internally institute liberal democratic values. To the extent that citizens choose to join internally illiberal or undemocratic associations, is liberal democratic government in jeopardy of becoming unstable? Rosenblum’s essay challenges the claim that incongruity between political norms and associational norms necessarily (or even generally) has a politically destabilizing effect.

A second and distinct question asks not about the stability of liberal democratic government but about the realization of liberal democratic principles. To what extent do liberal democratic principles morally bind citizens in their civic associations and, more generally, in their everyday life? The civic virtue of civility, Will Kymlicka argues:

involves a radical extension of the obligations of liberal citizenship; for the obligation to treat people as equal citizens now applies to the most common, everyday decisions of individuals. It is no longer permissible for businesses to refuse to hire black employees, or to refuse to serve black customers, or to segregate their black employees or customers. But not just that; the norms of nondiscrimination entail that it is impermissible for businesses to ignore their black customers or treat them rudely, although it is not always possible to legally enforce this. . . . Blacks must, in short, be treated with civility. The same applies to the way citizens treat each other in schools or recreational associations, even in private clubs.

The obligation of civility does not mean smiling at others no matter how badly they treat you, as if oppressed groups should be nice to their oppressors. Rather, it means treating others as equals on the condition that they extend the same recognition to you. Civility, so understood, is the logical extension of non-discrimination, since it is needed to ensure that all citizens have the same opportunity to participate within civil society. Whether the state can or should enforce these principles on secondary associations remains a separate and significant issue, addressed by other essays. But regardless of whether civility should be legally enforced, Kymlicka argues, citizens may legitimately judge others and be judged by whether they treat each other as civic equals in their everyday lives because liberal citizenship .. . requires this sort of civility.

Some critics argue that liberal democratic citizenship wrongly requires immigrant groups to give up their distinctive heritage and assimilate to the dominant culture. Other critics argue that multicultural demands are illiberal and undemocratic, and should give way to liberal democratic norms. Against both these claims, Kymlicka argues that the vast majority of successful multicultural demands by immigrant groups are compatible with, or even required by, liberal democratic principles. These demands include making school curricula more inclusive, revising dress codes to accommodate different cultures, providing cultural diversity training for public officials, publicly funding ethnic cultural festivals, and offering children transitional bilingual education programs in schools. We can distinguish these demands from those that would allow a group to deny its own members basic civil or political rights. An affirmative answer to the second question—which argues that liberal democratic principles can and should be furthered throughout civic life—rejects demands by any group that would authorize them to deny their members basic civil or political rights.

The United States has historically exempted a few small, radically separatist groups from this requirement of adherence to liberal democratic principles; for example, the Amish have been exempted from the state requirement of high school education for their children. This exemption is the exception that proves the rule precisely because the Amish are so unusual, isolated, and nonparticipatory in the political life of the United States, and therefore in this sense peripheral to the life of a liberal democracy. The Supreme Court case Wisconsin v. Yoder, which endorses this exemption, has rarely been used as a precedent precisely because the explicit basis for the exemption is a set of highly unusual characteristics of the Amish. If the principles of liberal democracy apply to all individuals, including children who are part of separatist sects (but not therefore under their exclusive authority), even the Amish exemption is not morally required, although it may be morally permitted. No significant social group or civic activity is morally exempt from liberal democratic principles, although some groups—national minorities that constitute themselves as separate societies within a society—have legitimate claims to their own government, rather than to be ruled by the larger territorial government. A national minority like Québécois may therefore be at least partly exempt from the political authority of the larger territorial government of Canada precisely because a national minority has legitimate claims to self-government, as other groups, including most immigrant groups, do not. The right to self-government does not exempt a national minority from liberal democratic principles; it exempts the national minority from the authority of a foreign government.

An affirmative answer to the second question applies liberal democratic principles to civil society and therefore to civic associations. It does not require that all civic associations be internally liberal and internally democratic. Peter de Marneffe’s essay in this volume effectively challenges any attempt to treat different associations as if their contribution to liberal democracy must be the same. De Marneffe argues for a case-by-case consideration of the burdens of state interference versus the burdens of noninterference. He finds that the burdens of state interference are far greater for some kinds of associations than for others.

The case-by-case method employed by de Marneffe is not ad hoc or arbitrary; it is a principled casuistic method of moral and constitutional decision making. By interpreting and applying the principle of basic liberty, we can distinguish between the burdens that a state-enforced policy of nondiscrimination against women would place on the exclusionary claims of a church, a country club, and a law firm. The differential burdens of interference, de Marneffe argues, require liberal democratic governments to give churches more room than country clubs to exclude women, and country clubs more room than law firms to exclude women. This analysis offers no simple formula, but it does offer principled considerations, derived from a widely shared conception of liberal democracy, that challenge the claims that all secondary associations or that no secondary associations should be prohibited from discriminating in their membership policies. The analysis invites anyone to challenge the principles of liberal democracy on which it is based, the practical implications that are drawn from the principles, or the judgment that goes into balancing the competing moral considerations.

A liberal democracy can support the civic value of associational life in some cases by insisting that a university or chamber of commerce open its doors to blacks and women, and in other cases by insisting that other more intimate, private, or expressive associations be free to discriminate in their membership and internal policies as they see fit. But the decision whether to regulate membership and other internal policies of associations is not the only way or even the most effective way in which a liberal democracy can