The Freedom (Not) to Associate

The issue:  When does the First Amendment protect an organization's right to exclude certain persons as members ?
Introduction
The phrase "freedom of association" does not appear in the Constitution (although the First Amendment protects the right to peaceably assemble).  Nonetheless, the Court has recognized to separate types of association that are constitutionally protected: (1) intimate association (protected as an aspect of the right of privacy) and (2) expressive association (protected as as an aspect of the First Amendment's protection of free speech).

Freedom of association cases are interesting in that they bring into conflict two competing views of the world: rights-oriented liberalism that holds that a person's identity comes from individual choices (and that government ought to create a framework of laws that remove barriers to choice) and communitarianism, that holds that a person's identity comes from the communities of which an individual is a part (and that communities are an important buffer between the government and the individual).

The leading case on the right of an association to establish and apply its own membership rules is the 1984 case of Roberts v. United States Jaycees.  In Roberts, the Court recognized that the power to determine its own membership is central to the free speech rights of expressive organizations. (Imagine how the speech of the Jewish Anti-Defamation League might be affected if it could be forced to admit as members anti-Semites.)  Nonetheless, the Court in Roberts upheld a Minnesota public accomodations law requiring the Jaycees to admit women as members in contravention of that organization's rules.  Justice Brennan, for the Court, found that Minnesota had a compelling interest in providing the women of Minnesota the economic benefits that came with membership in the Jaycees.  Justice O'Connor, in a concurring opinion, found that the Jaycees were a commercial organization and therefore subject to state regualtion of its membership.  On the other hand, according to O'Connor, a predominately expressive association has an absolute right to determine its own membership.  In subsequent cases in 1987 (Rotary International v Rotary Club of Duarte, 481 US 537) and 1988 (N. Y. State Club Ass'n v New York, 487 US 1), the Court extended Roberts.

In January 2000, the Supreme Court decided a closely-watched case involving New Jersey's decision that the Boy Scouts of America are a public accomodation that can be compelled to admit homosexuals. A 5-4 majority of the Court found unconstitutional New Jersey's decision prohibiting the Boy Scouts from terminating the membership of a gay scoutmaster.  The Court held that the First Amendment protected the Boy Scouts, as an expressive organization promoting the view that homosexuality is an unacceptable lifestyle, from excluding scouts on that basis.  The four dissenters questioned whether views with respect to homosexuality were at all central to the Scouts' expressive purposes. 

Do Law Schools Have a Right Not to Associate with
Military  Recruiters?
In 2006, the Supreme Court considered a claim by law schools that their First Amendment associational rights were violated by the Solomon Amendment, a federal law that withdrew federal funding from any school that excluded military recruiters.  In the case, Rumsfield v Forum for Academic and Institutional Rights, the law schools argued that they found the military's ban on homosexuals (even as enforced under its "Don't Ask, Don't Tell" policy) objectionable, and did not wish to be seen as supporting such a policy be allowing military recruiters into their buildings.  The Supreme Court, voting 8 to 0, rejected the law schools' argument.  Writing for the Court, Chief Justice Roberts said the act "regulates conduct, not speech" and does not address what the schools "may or may not say" about the controversial military policy.  On the associational issue, Roberts distinguished this case from Boy Scouts v Dale: "Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students--not to become members of the school's expressive association.  This distinction is critical." 
 
 Cases
Roberts vs. United States Jaycees (1984)
Boy Scouts of America vs. Dale (2000)


Gay Scout James Dale after oral arguments in 
 Boy Scouts of America vs Dale.

Questions

1. What are the differences between the approached taken by Justices Brennan and O'Connor in their opinions in Roberts?  Which approach is better?  Why?
2.  Would Justice O'Connor be more likely to categorize the Boy Scouts as a predominately commercial organization or as a predominately expressive organization?
3.  Was it really of "compelling" importance to the economic well-being of women in Minnesota that the Jaycees be opened to  membership by women?
4.  Does Roberts encourage organizations restricting membership to take strong positions opposing in some way the interests of persons in the category restricted from membership?
5.  What are the two types of association protected by the Constitution?  What are examples of entities, relationships, or organizations that might be recognized as protected under the right of intimate association?
6.  What should Roberts mean for golf clubs, fraternities, and other social organizations that exclude members based on race, religion, sex, or sexual preference?
7.  Would Dale have come out differently if Dale had been a fourteen-year-old scout, rather than a college-aged scoutmaster?
8.  How central to the Scouts' expressive purposes do whatever views it may have on homosexuality appear to be?
9.  Would the Scouts case have come out differently if the official view of the Scouts being challenged was an objection to inter-racial dating, and the exclusion of a scout for inter-racial dating were the issue before the Court?  Why or why not?

 Further Reading
Douglas Linder, Freedom of Association After Roberts v. United States Jaycees, 82 MICHIGAN LAW REVIEW 1878 (August, 1984).

Link
Boy Scouts and Homosexuality
 Exploring Constitutional Conflicts Homepage