Courts and Communities

Luke Sheahan’s debut book, Why Associations Matter, is surprisingly timely. Individuals and families have been sheltering at home. Yet questions about institutions and associations have been a major part of the pandemic. Can the state require religious communities to gather only online? In restricting in-person gatherings, can it distinguish between a sincere group of gun-toting critics of government public health measures and a sincere group of Black Lives Matters activists protesting police violence?

These questions are pressing even in this moment of forced isolation. People long for community and often find it in voluntary and other associations. As Sheahan writes, human beings are “creatures of their relationships.” Those associations are challenged not only by the state, but by internal and external debates about the scope of associations’ legal and moral rights.  

Sheahan brings a salutary vision to these questions. Drawing on the work of Robert Nisbet, he emphasizes the value of associations and the need for law to “properly account for the social reality of the First Amendment landscape.” He is practically minded in his approach to possible solutions—and especially commendable in looking for legislative and not just judicial solutions.

One might not be fully persuaded either by Sheahan’s account of the problem or by the solutions he offers, however. The Supreme Court has certainly done a poor job with the freedom of association. But it is an exaggeration to say that this right is “vanishing.” Indeed, the current Court is likelier to resurrect freedom of association than eliminate it. Nor are Sheahan’s recommended reforms wholly convincing. The questions they raise call for precisely the sort of expertise that courts are ill-suited to provide. One sympathizes with the author. (I should disclose that Sheahan generously discusses my own efforts in this area, but argues that my approach falls short. I can’t say he’s wrong.) But one may also end up with new sympathy for the courts’ own imperfect efforts.

The “First Amendment Dichotomy” 

There is no textual federal constitutional right to freedom of association. Like the right to privacy, it is a creature of judicial doctrine—and often an ill-fitting one at that. One major hurdle involves the dualistic architecture that guides the courts. On one side stands the individual, “abstracted from his social context in associations and institutions, the communities of belief and action in which he is actually found.” On the other stands the state: “monolithic in power and reach, absolute in sovereignty.” That does not mean social activities are unprotected. But the measure of their rights largely involves individual claims on one side and asserted state interests on the other. The conceptual space between them remains mostly empty, despite all the meaning-making activity that we know occurs there.

The Supreme Court’s protection of voluntary associations depends on expression. Groups may associate “for the purpose of those activities,” such as speech or religious exercise, that are “protected by the First Amendment.” As powerful as the right of expressive association can be, it is still essentially instrumental. The notion that association might provide goods that are only indirectly related to individual expression has little place in this doctrinal design. Thus, voluntary and other associations are protected, but vulnerable. Courts will not hesitate to apply generally applicable laws to them and to reject claims of constitutional right when the state can assert the need to avoid some potential harm. The growing reach of state regulatory power and increasingly expansive definition of what constitutes “harm” leaves them with little support other than what they can claim as vehicles for other rights, such as expression.

That is a mistake, Sheahan argues. The value of voluntary associations lies not simply in their instrumental facilitation of speech, but in the “social bonds” they create. Echoing Nisbet, Sheahan contends that associations provide a “communal value” that is essential to “humane existence.”

To fulfill that function, associations need the freedom to insist on their own central tenets and to form their own rules of inclusion and exclusion (at least as long as there is a right of exit). They should not be forced to follow what political theorist Nancy Rosenblum calls “the logic of congruence,” under which “the internal life and organization of associations [must] mirror liberal democratic principles and practices.”

Martinez and the “Logic of Congruence”

The Supreme Court’s decision in Christian Legal Society v. Martinez (2010), which is central to Sheahan’s book, exemplifies this point. Martinez asked whether the University of California-Hastings law school could deny official recognition to a chapter of the Christian Legal Society for refusing to grant membership to those engaged in “unrepentant homosexual conduct.” Hastings insisted that membership in official student groups must be open to “all comers.”

There is much to criticize about the Court’s decision in Martinez, which ruled for the law school by treating the all-comers policy as a viewpoint-neutral government condition on the use of a “limited public forum.” More strikingly, however, both sides on the Court used the dispute to vindicate their own view of associations and institutions. Although Justice Ginsburg’s opinion for the Court relied on the school’s nondiscrimination policy rather than impose the requirement as a constitutional matter, the opinion suggests her own approval of the policy for “encourag[ing] tolerance, cooperation, and learning among students.” One may praise her commitment to equality while worrying about a rule that allows public universities to impose the logic of congruence on any groups within their gates.

Justice Alito’s dissent makes its own insistent demands on institutions. The decision, he charges, sends a clear message: “No freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” One may agree with his commitment to a particular vision of free inquiry and religious and ideological diversity in the university (as I do) while observing that it is his vision, and that he is equally willing to impose it as a matter of constitutional law.

The broader the scope of the regulatory state, the harder it is to thread a line between protecting the autonomy of associations and preserving the legal project of nondiscrimination.

Martinez involves state actors. But one senses that the justices on both sides are influenced by substantive views about universities and student groups. That there might be multiple sorts of universities with varied policies concerning student groups, and that courts might have little to say about the matter, fits poorly into the simple dichotomy of state vs. individual. As Sheahan writes, the courts lack the “theoretical apparatus” to see more broadly than that.

That said, it does matter that Martinez involves groups within a specialized institution—the public university. The Court’s insistence that the case involves public support for student groups, and not those groups’ right to exist, matters too. I share Sheahan’s discontent with the Court’s doctrinal choices in Martinez. But even if one sets aside the Court’s strong support for the autonomy of religious groups, it goes too far to say that Martinez “excis[es] freedom of association from American constitutional jurisprudence.” That seems especially unlikely to be true of the current Court—although it may well turn to history and tradition to protect associations, rather than the contextual approach that Sheahan advocates.

Protecting “the Social”

Sheahan argues that constitutional law should cultivate a “First Amendment Pluralism” that recognizes “the importance of a plurality of social groups” and protects “the functional autonomy of associations, preserving freedoms necessary for associations to function according to their diverse purposes.” Commendably, Sheahan’s approach here is practical and multi-pronged, avoiding both the abstractions of theory and the court-centric habits of legal academics.

The judicial test he offers requires courts to apply strict scrutiny, upholding the autonomy of voluntary associations absent a narrowly tailored, compelling state interest. They should be protected not just in their expression, but in their internal practices, membership rules, and central tenets. As a legislative adjunct or alternative, Sheahan proposes a “Freedom of Association Preservation Act.” It would apply strict scrutiny to government actions that substantially burden the associational freedom of an individual or group, whether the burden is intentional or incidental. It is to Sheahan’s credit that he recognizes that courts are not the only institution involved in protecting voluntary associations.

The downside of an explicitly practical approach is that it makes more visible the practical questions it raises. For one: Why strict scrutiny? Consider what happened in religious exercise law. In part because of the conflicting interests involved in such cases and especially because the Court purported to apply it in this area to incidental and not just intentional burdens on religious exercise, strict scrutiny had a checkered career in this area. Given its reluctance to apply so heavy a level of scrutiny, especially in incidental burden cases, the Court often avoided or watered down the test, and ultimately scrapped strict scrutiny altogether in free exercise cases involving neutral, generally applicable laws. The same is likely to happen to the kind of far-reaching associational right Sheahan argues for, one that includes incidental burdens. He concedes that even a robust freedom of association requires “doctrinal balancing and contextual definitions.” If so, wouldn’t it be more sensible to begin with a more even balancing of interests? Conversely, are courts really capable of engaging in this kind of all-in analysis?

At a minimum, courts need definitions to guide and constrain them. A term like “voluntary association” defies easy definition. Although he offers a rich discussion of this point in the surrounding pages, Sheahan does surprisingly little within his concrete proposals to offer a definition. As Justice Brett Kavanaugh recently noted, courts in free exercise cases are often hung up not on the level of scrutiny but on “definitional battles,” which “can influence, if not decide, the outcomes of religion cases.” This is all the more likely to be true in voluntary association cases. Before they even get to balancing, courts will narrow the definition of “voluntary association,” or resolve cases by arguing over what constitutes a “substantial burden” and what sorts of pressures do or don’t impede members’ exit rights. There is more than one way to avoid skinning a cat.

Definitional battles, along with other means of finessing or avoiding strict scrutiny, are all the more likely because of what Sheahan’s proposals—especially if they apply to incidental as well as intentional burdens—could mean for civil rights laws. Sheahan writes that his protective approach to voluntary associations “would not apply in the commercial context or to educational institutions’ tax exemptions status or to quasigovernmental groups.” I am not sure why: as he notes, work as well as other activities can serve as a vehicle for the expression of identity. There will inevitably be borderline cases. If not a bar, what about a bottle club?

And although much of the book is aimed at undoing the decision in Martinez, Sheahan would draw the line at racially exclusive associations, while allowing student clubs to exclude on the basis of gender or sexual orientation. There are reasonable arguments that race is different and historically unique. But they are hard to sustain. And it is harder still to argue that judges are qualified to say that government has a compelling interest in combating racial discrimination within universities, but not gender or sexual orientation discrimination.

One may sympathize with Sheahan. The broader the scope of the regulatory state—and the more willing various groups are to accept sponsorship and aid—the harder it is to thread a line between protecting the autonomy of voluntary associations and preserving the legal project of nondiscrimination. Most writers in this area want to preserve the law in this area involving race while confining its reach. It’s easier said than done.

That may lead one to a newfound sympathy for the courts’ mechanical approach. Sheahan is surely right that the dichotomous vision of the courts misses much of the richness of social life. Reducing associational freedom to its expressive component misses most of what makes these groups important to their members—and to society. But this approach was a useful way for courts to preserve freedom for private groups while making sure that civil rights laws did not run aground almost immediately where businesses and other enterprises that wanted to continue racial segregation were concerned. Similarly, viewpoint- and content-neutrality and other standard doctrinal devices are highly imperfect at describing social life but very useful at constraining courts and governments. 

We can surely do better at describing reality. Sheahan’s account of the importance of voluntary associations, including their inner life as well as their outward expression, accomplishes that. One may read the opinions in Martinez with a sense of how obtuse they are and how much they miss. Turning that sense into an instruction manual for judges or legislators is, alas, a much harder task.