Protecting Freedom of Association
In July 2021, the Supreme Court handed down its decision in Americans for Prosperity v. Bonta — a long-anticipated case on freedom of association. The matter originated in California, where state regulations required organizations operating within the state to disclose the names and addresses of their major donors. In 2010, California's attorney general threatened to issue fines and suspend registrations of organizations failing to comply with the regulations. The Americans for Prosperity Foundation and the Thomas More Law Center refused to turn over their donor lists, and both sued the state for violating their associational rights.
Though the justices correctly ruled 6 to 3 against the state of California, the case highlighted a long-standing problem with the Court's associational-rights jurisprudence: the failure to identify a clear textual location for the right. This led the Court to apply "exacting scrutiny" to the alleged infringement on the right — a lower standard than the strict scrutiny used to adjudicate possible violations of other First Amendment rights. The decision has left a variety of civil-society associations vulnerable to government meddling.
The Court's failure to give the right of association its due is embedded in the theoretical assumptions undergirding its precedent, which excludes civil-society interests from the constitutional calculus. Justice Clarence Thomas's concurrence in Americans for Prosperity points to some of the Court's shortcomings on the matter and argues for reviving the Assembly Clause — the most natural source of associational protections in the Constitution's text. But the fact that only one justice sees the problem raises serious questions about the Court's treatment of the issue.
Given the importance of our civil-society associations and the fact that the Court appears unlikely to change course on the matter anytime soon, the American people should take matters into their own hands. Enterprising lawmakers can intervene on their behalf with legislation designed to supplement the defense of associational freedom against state intrusion, thereby restoring a key constitutional protection that the Court has repeatedly failed to uphold.
A JURISPRUDENCE OF ERROR
The Supreme Court failed to find better constitutional grounding for the right of association in Americans for Prosperity in part because the case adhered closely to the original fact pattern that spawned the Court's jurisprudence on the matter: a law requiring private groups to divulge their associates. In 2021, the issue was the disclosure of individuals who had donated to conservative groups. Six decades earlier, it was the disclosure of members of the National Association for the Advancement of Colored People (NAACP).
In 1958, the Supreme Court ruled in NAACP v. Patterson that the state of Alabama could not require the NAACP to divulge its membership list to state officials. Although the NAACP was incorporated in New York, Alabama claimed it could require the organization to turn over its membership list if it wished to operate in the state. The Court ruled unanimously for the NAACP, holding that the right to privacy in one's associations includes a right to refuse to disclose those with whom one associates. In his opinion for the Court, Justice John Harlan asserted that the right originated in the protection of liberty in the 14th Amendment's Due Process Clause.
While the NAACP decision was rightly decided and is universally praised, it has a chink in its armor: Neither "association" nor its close cousin, "assembly," are found in the text of the 14th Amendment. Harlan's rationale ignored an explicit and, in hindsight, obvious textual location for the right of association: the Assembly Clause of the First Amendment. That clause reads, "Congress shall make no law...abridging...the right of the people peaceably to assemble."
The reasons the Court opted for the non-textual right of association over the textual one are complex; they include a few 19th-century misdirections in the Court's jurisprudence as well as the Red Scare of the 1950s, during which the Court fixated on the dangers of recognizing the associational rights of subversive groups. But regardless of its rationale, the Court's decision to appeal to a non-textual right has had serious consequences for its jurisprudence on the issue.
We see this first in NAACP, where the Court described the right of association as the "freedom to engage in association for the advancement of beliefs and ideas." "Effective advocacy of both public and private points of view," the Court reasoned, "is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly." In other words, the Court held that the right of association attaches only if the association's aim is expression. This framing set the freedom of speech as the fundamental purpose of associational rights.
References to the rights of speech and assembly notwithstanding, the Court did not anchor the right of association in the First Amendment until 1961. In that case — Louisiana v. NAACP — the justices doubled down on their earlier rationale, holding that the right of association isn't an independent right exercised for its own sake, but rather one that enables the exercise of other rights — particularly that of expression.
Eventually, in Roberts v. United States Jaycees, the Court distinguished between two categories of protected association: "expressive association," which refers to the speech-based associational right described in the NAACP cases, and "intimate association," which applies to civil-society groups intended to "foster diversity and act as critical buffers between the individual and the power of the State." Since Roberts, however, the Court has done little with the latter category; for the most part, it has incorporated matters involving intimate association into narrow concepts of privacy.
As a result, expressive association has become the primary lens through which the Court analyzes questions involving the right of association. This approach was on display in Boy Scouts of America v. Dale, where the Court ruled that a private non-profit group was not subject to the public-accommodation laws of New Jersey. Instead of justifying the decision based on a right to intimate association as one might expect, the majority held that if the "forced inclusion of an unwanted person in a group...affects in a significant way the group's ability to advocate public or private viewpoints," it "infringes the group's freedom of expressive association."
The Court's expressive-association language is often quite broad, but the protection it provides is narrow. Groups that exist, in the words of the Court in NAACP v. Patterson, "to engage in association for the advancement of beliefs and ideas" are shielded from government intrusion, but those that exist for purposes of fraternity and solidarity are not. A group may espouse ideas and beliefs that guide its activities, but unless the group is "advancing" those ideas, its activities will not fall within the bounds of the First Amendment. Under this rubric, lower federal courts have denied associational protections to college fraternities, skating-rink patrons, and a motorcycle club.
Perhaps most alarmingly, the Court has used the framework to deny such protections to religious student groups. In Christian Legal Society v. Martinez, the Court used a warped definition of the term "limited public forum" — a category the Court created for the protection of speech rights — to allow a public university to forbid a religious student group from excluding students who did not hold to the group's statement of faith. In other words, a Christian organization had to admit non-Christians or lose its registration status and incumbent benefits. By extension, the College Democrats could not require members to be Democrats, nor could the College Republicans require members to be Republicans. The jokes write themselves.
The Martinez court's reasoning is especially telling of how truncated the right of association has become. As the Court observed, "[CLS's] expressive-association and free-speech arguments merge: Who speaks on its behalf...colors what concept is conveyed." "It therefore makes little sense," the majority held, "to treat CLS's speech and association claims as discrete." This reasoning effectively reduces all associational claims to free-speech claims.
REORIENTING THE RIGHT OF ASSOCIATION
The Court's continued insistence on subordinating associational rights to the right to free speech derives in large part from its understanding of the First Amendment, which it views primarily as protecting the rights that enable individuals to participate in democratic government. There is no denying that the free exchange of ideas and other freedoms the First Amendment protects are crucial to democratic decision-making, and associations certainly play a role in that regard. But in reading the right of association as a corollary to democratic self-governance, the Court has diminished the meaning and scope of the former, leaving crucial components of our social realm vulnerable to state interference.
The founders understood the right of association — and the First Amendment as a whole — quite differently. We can see this in the debates that took place during the first Congress, when the right's essential nature was at issue in the dispute over whether the Assembly Clause was needed at all. Representative Theodore Sedgwick of Massachusetts objected to including the clause in what would become the Bill of Rights, declaring that "[the right to assembly] is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question." He deemed it "derogatory to the dignity of the House to descend to such minutiae."
Representative John Page of Virginia disagreed, noting:
[Representative Sedgwick] supposes [assembly rights are] no more essential than whether a man has a right to wear his hat or not; but let me observe to him that such rights have been opposed....[People have been] prevented from assembling together on their lawful occasions, therefore it is well to guard against such stretches of authority, by inserting the privilege in the declaration of rights.
The record notes that Sedgwick's motion to strike the Assembly Clause "lost by a considerable majority."
Page's reference to "whether a man has a right to wear his hat" was almost certainly an allusion to William Penn. In 1670, Penn was arrested for violating England's law against religious assembly for non-Anglicans, and during the trial, he was held in contempt of court for refusing to remove his hat. That Page would mention the incident lends further weight to the argument that the Assembly Clause was crafted with social, rather than democratic, values in mind. For him, the clause was intended to shield an activity — communal religious worship — that has social and spiritual, rather than political, ends.
Once the Bill of Rights was ratified, appeals to the right of association began almost immediately. As early as the 1790s, Democratic-Republican societies argued that their organizations' activities deserved protection. John Inazu, a law professor at Washington University in St. Louis, chronicles these incidents in his book Liberty's Refuge. While these groups were undoubtedly political, the activities they sought to protect were not; they included potlucks, festivals, parades, and the like. Such arguments would emerge again and again as the right of association was litigated at the state and federal levels throughout the early years of the republic. This history suggests that the Assembly Clause protects the freedom of association not just as an auxiliary to free speech or a prerequisite to democratic governance, but as an expansive liberty to engage in a broad range of activities, formal and informal, social and political.
Alexis de Tocqueville discovered just how key such freedom is to the American constitutional order when he visited the United States in the early 1830s. In his seminal work, Democracy in America, he wrote admiringly of Americans' tendency to unite with their fellow countrymen in pursuit of shared goals and interests:
Americans of all ages, all conditions, all minds constantly unite. Not only do they have commercial and industrial associations in which all take part, but they also have a thousand other kinds: religious, moral, grave, futile, very general and very particular, immense and very small; Americans use associations to give fêtes, to found seminaries, to build inns, to raise churches, to distribute books, to send missionaries to the antipodes; in this manner they create hospitals, prisons, schools....[I]f it is a question of bringing to light a truth or developing a sentiment with the support of a great example, they associate.
Tocqueville saw this capacity to organize outside the political realm as a necessity in democratic societies, where "equality of condition" replaces the rigid social hierarchies of countries like England and France. In aristocratic societies, he observed, more powerful individuals can accomplish much on behalf of those they hold in their sway. But in a democracy, all citizens are isolated and weak, capable of achieving little on their own or forcing others to cooperate in their endeavors. "[I]f they do not learn to aid each other freely," Tocqueville argued, they "all fall into impotence."
More than a century later, sociologist Robert Nisbet wrote of how Americans' muscular propensity to form associations had atrophied. The modern state had grown exponentially in power in the late 19th and early 20th centuries, ostensibly liberating individuals from the duties and confines of their private associations. However, it did so at the expense of civil society — the social realm that lies between the state and the individual, where the associations that Tocqueville spoke so highly of operate. Without civil-society associations acting as a buffer between the state and the individual, the state was allowed to spread further and deeper into Americans' lives, taking over various activities that people once carried out voluntarily with one another. Tocqueville himself anticipated as much: "[I]f each citizen does not learn the art of uniting with those like him to defend" their liberty, "tyranny will necessarily grow."
As the associational bonds that had long given Americans' lives meaning dissolved in the acids of political centralization, the exhilarating independence people experienced as their associations receded gave way to debilitating isolation. By the end of the 20th century, matters had not improved. In 2000, Robert Putnam famously observed that Americans were increasingly bowling — and doing everything else — on their own. This trend has received blame for everything from increased political polarization to declining birth rates to the rash of deaths due to drugs, alcohol, and suicide plaguing our nation's economically depressed regions.
Restoring Americans' propensity to form associations with their fellow citizens will not be easy, and will require more than a shift in public policy or constitutional adjudication. Still, protecting associational rights from government intrusion would do much to push the state out of civil society, giving individuals the space they need to begin rebuilding their communal bonds and associational capacity.
A NEW FRAMEWORK
As noted above, the Supreme Court is unlikely to change course on associational rights in the near future. But Americans and their representatives don't have to wait for the Court to act in order to protect those rights. A look at how lawmakers safeguarded religious-freedom rights when the Court left them vulnerable can help illuminate the path forward for those who understand how crucial voluntary associations are to a free society.
In 1990, the Court handed down its decision in Employment Division v. Smith — a case involving Oregon's ban on the use of peyote. The respondents in the case had been denied unemployment compensation because they were fired from their jobs for ingesting peyote as part of a religious sacrament. The Court held that a neutral and generally applicable regulation like Oregon's may lawfully burden an individual's right to the free exercise of religion. In doing so, it abandoned the compelling-interest test it had used to adjudicate religious-freedom cases for decades, leaving religious practices more vulnerable to government regulation.
The decision provoked widespread outcry among the public, prompting Congress to respond. The result — the Religious Freedom Restoration Act (RFRA) — was signed into law just three years later. And when the Court struck down the act as applied to the states, nearly two dozen of them passed their own versions of RFRA to ensure their residents' free-exercise rights were protected from intrusion by state actors as well as federal ones.
Lawmakers today might consider following this example in the context of associational rights. To help develop a framework for a law protecting those rights, we turn again to Robert Nisbet.
In Twilight of Authority, Nisbet articulated several principles he thought necessary to protecting voluntary associations in civil society. Two of these — which he called "functional autonomy" and "tradition" — are particularly relevant to our discussion. By "functional autonomy," Nisbet meant the freedom necessary for an association to perform its role in society. An association, he asserted, must be able to exert authority in matters relating to its central tenets, or core beliefs, as well as its practices — the activities its members carry out in support of the group's central tenets. This includes the freedom to hire and appoint to leadership positions individuals the group deems fit, as well as the freedom to fundraise, meet regularly, use public property, and maintain anonymity. The free exercise of such authority, he argued, is necessary for any group to define and uphold its purpose.
Nisbet's second principle — "tradition" — can be understood as an association's authority to prescribe practices whereby individuals participate in ways large and small, formal and informal, as members of the group. A religious association, for instance, could prescribe the practice of anonymous donation because its religious doctrines, which are core to its identity, require the practice. Likewise, some associations — especially those consisting of members with minority identities or viewpoints — may call for anonymous donation to ensure the group's survival in hostile environments. In both cases, the association's functional autonomy requires that it be granted the freedom to engage in the practice prescribed.
Policymakers can adapt the principles of functional autonomy and prescribed practices to a RFRA-like proposal that would accomplish what the Supreme Court failed to do: give freedom of association the protection it is due. The model legislation below is written with federal law in mind, but it could also serve as a starting point for legislators at the state level.
Freedom of Association Protection Act (FAPA)
1. Findings and Declaration of Purpose
(a) The Congress finds that —
1) The framers of the Constitution, recognizing the freedom of association as an essential right, secured its protection in the right "peaceably to assemble" in the First Amendment to the Constitution;
2) History and jurisprudence indicate that the Assembly Clause protects both religious and non-religious associations;
3) Laws or policies "neutral" toward associations may burden the freedom of association just as surely as laws or policies intended to interfere with the freedom of association;
4) The textual restriction on assembly and association — that they be "peaceable" — forbids governments from substantially burdening freedom of association without compelling justification;
5) The limited public forum is an important category of constitutional protection, especially in places that carry out specific types of government activity, such as public universities;
6) In Christian Legal Society v. Martinez, 561 U.S. 661 (2010), the Supreme Court effectively eliminated the requirement that the government justify burdens on the freedom of association imposed on laws or policies neutral toward the association in a limited public forum; and
7) The compelling-interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between the First Amendment freedom of association and competing government interests.
(b) The purposes of this Act are —
1) To require the compelling-interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), be applied in all cases where freedom of assembly or freedom of association is substantially burdened; and
2) To provide a claim or defense to persons or associations whose freedom of association is substantially burdened by government.
2. Freedom of Association Protected
(a) In General
Government shall not substantially burden a person's freedom to associate or assemble with others for any peaceable purpose; nor shall the government substantially burden the functional autonomy of any association; nor shall it inappropriately interfere with the prescribed practices, or internal norms, of an association.
Government may burden the exercise of a person's or group's freedom of association only if it demonstrates that the application of the burden to the functional autonomy of the association
1) Is substantially interfering with an individual's right of exit; or
2) Is in furtherance of a compelling government interest and is the least restrictive means of furthering that compelling government interest.
(c) Judicial Relief
A person or an association may assert a violation of freedom of association as a claim or a defense in a judicial proceeding and obtain appropriate relief against the government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under Article III of the Constitution.
As used in this Act:
(a) The term "government" includes a branch, department, agency, instrumentality, or official (or other person acting under color of law) of the United States, or of a covered entity;
(b) The term "covered entity" means the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;
(c) The term "freedom of association" means both the freedom of a person to associate with others for any lawful and peaceable purpose and the right of an association to establish boundaries of membership according to its own internal articulation of central tenets and prescribed practices that do not threaten the public peace. Freedom of association is a right required by the Assembly Clause of the First Amendment;
(d) The term "central tenets" refers to fundamental beliefs, no matter how profound or mundane, that form an association's founding purpose, and that guide an association toward the end for which it exists; and
(e) The term "prescribed practices" refers to actions or prohibitions from acting required of members by the organization that it asserts are important to its central tenets. It includes the ways and means, written or unwritten, that guide the internal workings of an association for reasons sometimes opaque to outside observers.
(a) In General
This Act applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the date of its enactment.
(b) Rule of Construction
Federal statutory law adopted after the date of enactment of this Act is subject to this Act unless such law explicitly excludes such application by reference to this Act.
(c) Other First Amendment Rights Unaffected
Nothing in this Act shall be construed to affect, interpret, or in any way allow the Federal government to prohibit freedom of speech or infringe upon the free exercise of religion, or otherwise affect rights that adhere to expressive associations and religious organizations, respectively.
Congress passed RFRA with massive bipartisan majorities in 1993. Increased polarization since then means that achieving anything similar today will require bringing together a coalition of disparate and ideologically opposed groups. Fortunately, the right of association has plenty of unifying potential — as the Americans for Prosperity case illustrates.
In Americans for Prosperity, more than 40 amicus briefs were filed in support of the petitioners by organizations as diverse as the Becket Fund, the Council on American-Islamic Relations, and the American Civil Liberties Union. Whether conservative or liberal, religious or secular, it's clear that countless Americans recognize the key role that associations play in our lives and our constitutional order.
A federal or state law modeled on the language above would help restore Americans' right of association. It would also extend the logic of RFRA in a way that addresses one of its most apparent shortcomings. Critics of RFRA tend to argue that the law unfairly prioritizes religious groups over non-religious ones, and some appear to suggest that weakening RFRA would be the best way to eliminate such favoritism. What they fail to consider is that our civil-society institutions might be better served if RFRA-like protections covered all associations. A law based on the one outlined above would do just that.
Such a move would not render RFRA unnecessary, since the Free Exercise Clause may have implications that the Assembly Clause does not. But by extending RFRA-like protections to all associations, FAPA would put religious and non-religious groups on equal footing without undermining the rights of the former.
One final word of caution is warranted here: Distinguishing between prescribed practices that are important to the core tenets of a group and those that are not will be tricky. Some practices may be truly unimportant, and thus unworthy of protection. But others may be essential to group activity and cohesion in ways a non-member cannot easily observe.
Again, Americans for Prosperity illustrates this point. The reasons to refrain from disclosing donors range from time-honored Christian, Jewish, and Muslim teachings on anonymous donations to protecting minority associations from retaliation. These rationales may not be readily apparent to those who don't belong to these groups, but they are arguably worthy of consideration.
This was a central argument in several amicus briefs submitted in Americans for Prosperity, including those of the New Civil Liberties Alliance and the Becket Fund. As the latter's brief notes, untangling the reasoning behind why a group considers a practice important requires government officials to evaluate theological or philosophical claims — a task they are ill-suited to perform. Moving forward, lawmakers and judges should be mindful of this hurdle as they craft and interpret freedom-of-association laws modeled on FAPA.
PROTECTING CIVIL SOCIETY
Private associations — our friendships, clubs, neighborhood groups, school communities, religious institutions, and the like — exist for their own purposes, have their own functions, and provide their own services to their members. They order our lives according to values of transcendent and potentially eternal significance, and enable us to govern ourselves in ways that do not touch directly upon the broader democratic order. They play a role in shaping our ideas and identities long before they become relevant to political discussion or policymaking — if they ever do. To the extent our associations relate to democratic governance, they do so only after their formative functions have long been at work.
When properly understood, the right of association is primarily directed not toward facilitating democratic self-governance (although it undoubtedly does so), but toward preserving a deeper type of self-government — one that we should understand as existing prior to the state and operating outside of strictly political concerns. The sooner our laws reflect this truth, the better.