In By Birth or Consent, historian Holly Brewer does nothing less than trace the evolution of the central postulate of liberalism from theory to practice.
To many in the law, the First Amendment “right of the people peaceably to assemble” may seem little more than the aspirational vestige of a bygone era. It may have fortified early generations who had reason to fear forced dispersion of dissident political assemblies, but has little practical application in our more enlightened and progressive age. Nowadays, as law students (and Wall Street occupiers) quickly learn, the heavy lifting is done by “the freedom of expressive association” and “forum analysis”—concepts that, if less tightly moored to the First Amendment’s text, are nevertheless firmly anchored in contemporary jurisprudence.
In Liberty’s Refuge: The Forgotten Freedom of Assembly, Washington University (St. Louis) law professor John Inazu skillfully argues that we have lost something critical in this shift from assembly to expressive association; namely, the benefits of a meaningful pluralism. The reorientation towards our present-day associational hermeneutic, Inazu contends, has elevated a particular conception of stability and social cohesion at the expense of group autonomy. The result has been “the loss of meaningful protections for the dissenting, political, and expressive group.” (4) Nowhere is this clearer than when group autonomy comes into conflict with anti-discrimination or equality-promoting statutes. In the 2010 case of Christian Legal Society v. Martinez, for example, “the Supreme Court relied on a muddied area of free speech doctrine to deny the right of a religious student group to limit its membership to those of its choosing, the right to retain control over its own message—the right to exist.” (5)
More specifically, a five-Justice majority held that California’s Hastings College of the Law could deny official recognition to a Christian Legal Society group on the grounds that the group’s required “statement of faith” regarding sexual morality was incompatible with the school’s requirement that club leadership positions be open to all students regardless of sexual orientation. Applying its First Amendment “forum analysis” rubric, the majority determined that Hastings’ requirement was a “reasonable, viewpoint-neutral condition on access to the student-organization forum.” Concurring, Justice Kennedy emphasized that Hastings could reasonably consider a belief-affirming or outside conduct requirement to be “divisive for student relations” and inconsistent with an atmosphere of free and open discussion. “The era of loyalty oaths,” he proclaimed, “is behind us.”
Even granting that cases like Martinez may reflect a streak of liberal paternalism, one might nevertheless invert Inazu’s proposal and ask why we should protect group autonomy at the expense of stability, equality, and inclusiveness. He responds with a powerful observation from Yale law professor Stephen Carter: “Democracy advances through dissent, difference, and dialogue. The idea that the state should not only create a set of meanings, but try to alter the structure of institutions that do not match it, is ultimately destructive of democracy because it destroys the differences that create the dialectic.” (5) Furthermore, Inazu notes, the expressive association analysis is “underwritten by a political theory of consensus liberalism, which purports to be ‘procedural’ or ‘neutral’ but whose espoused tolerance extends only to groups that endorse the fundamental assumptions of liberal democratic theory.” (11) Thus, the associational hermeneutic does not merely sacrifice group autonomy for the sake of stability and social cohesion generally, but rather for the realization of a very particular conception of those goods as envisioned by Rawlsian academic elites. If followed to its natural conclusion, Inazu notes, such a view marginalizes not only all-Christian student groups, but also “all-female sororities, all-female health clubs, and all-gay social clubs. In other words, it leaves us without a meaningful pluralism.” (11)
In a series of carefully researched and well-organized chapters, Inazu makes a compelling case for recovering the freedom of assembly as both a matter of academic inquiry and judicial doctrine. He first traces the right and its development through six periods of American history: the eighteenth-century Democratic-Republican societies that challenged the agenda of the then-dominant Federalists; (21-29) the legal status of assembly in the antebellum era (29-35) and following the Civil War; (35-44) the assertion of the right by suffragists, civil rights activists, and organized labor during the Progressive Era; (44-48) the zenith of the right during the interwar period; (49-60) and a decline in favor of expressive association since the mid-twentieth century. (61-62) Following this general survey, Inazu devotes two chapters to a closer examination of assembly and association during two major periods of tension between group autonomy and public equality in the twentieth century: the “National Security Era” that lasted from the late 1940s until the early 1960s, (63-117) and the “Equality Era” marked by the rise of the Civil Rights Movement thereafter. (118-149) Finally, Inazu draws upon all of these historical-political-legal developments to propose and illustrate a resurrected theory of assembly.
Throughout his analysis, Inazu deserves high marks for the objectivity and even-handedness with which he approaches his task. As an advocate of contextual analysis, he carefully provides the reader with a framework in which to situate and comprehend doctrinal developments. He is a skillful and committed advocate for a robust freedom of assembly, but his arguments are not ideologically driven. He readily acknowledges, for example, that there are very good reasons to circumscribe group autonomy in some cases, particularly those of segregationists who sought to exclude African-Americans from a host of private and public goods. (119-124) Indeed, Inazu examines at considerable length the inconsistencies and divergences that arose as the Court struggled to delineate the limits of associational autonomy in the face of conflicting societal pressures during the 1950s and 60s: “In the words of ACLU director Mel Wulf, there were ‘red cases and black cases.’ [Harry] Kalven phrased it more bluntly: ‘The Communists cannot win, the NAACP cannot lose.’” (90)
Inazu likewise takes pains to tackle the philosophical groundings for and influences upon the freedom of assembly, and does so largely in terms accessible to the non-expert lay reader. He makes no bones about his disagreement with the primacy that Rawlsian liberalism accords to consensus and stability. Nor does he conceal his concern with the difficulties posed by constraining modes of discourse through “public reason,” or spare the concept of “intimate association” a strongly-worded criticism. (129-141) He does, however, endeavor to treat his prospective critics fairly, most notably in a challenge to Northwestern law professor Andrew Koppelman’s description of the origins of the right to exclude in Koppelman’s 2009 book, A Right to Discriminate? (162-173)
In the end, Inazu proposes a theory of assembly that carries a strong presumption in favor of group autonomy, but allows for state limitation of this right in certain extreme circumstances:
The right of assembly is a presumptive right of individuals to form and participate in peaceable, noncommercial groups. This right is rebuttable when there is a compelling reason for thinking that the justifications for protecting assembly do not apply (as when the group prospers under monopolistic or near-monopolistic conditions). (166)
He then provides an illustration of how one might apply the definition by drafting a “missing dissent” for the seminal case Roberts v. United States Jaycees, in which the Court upheld a Minnesota statute that effectively required the Jaycees to admit women as full and equal members. (174-184) Although assuming the voice of a Justice (in this case Wiley Rutledge) always carries the risk of projecting arrogance, here it is quite clear that Inazu is merely providing a useful illustration and not grandstanding.
Inazu’s resurrected theory of assembly achieves the objective he has set for it: a strong defense of organizational autonomy with room for state intervention at the margins, such as violent action or attempts to exclude entire segments of society from meaningful access to community goods. Even so, the theory is bound to leave uneasy those who are enamored of bright-line rules and wary of leaving the last word on “compelling reasons” to judicial discretion. Inazu might well respond that such discretion is hardly greater than that already inherent in the “reasonableness” aspect of forum analysis, to say nothing of the “compelling interest” determination that is part of strict scrutiny generally. In the absence of a line of cases applying this new definition, potential litigants may be hard pressed to make a good estimation as to whether they will win or lose in any given case, but the presumption in favor of group autonomy undoubtedly creates a substantial hurdle to the suppression of dissident voices in the name of prevailing “consensus” values.
In an era seemingly addicted to political correctness and excessively inclined to dampen debate on “divisive” moral issues, this is surely a step in the right direction. As Inazu states in his pseudo-dissent: “The minimal constraints of peaceable assembly leave us with racists, bigots, and ideologues. They also leave us with difference. Peaceable assembly forces us to confront more honestly questions of what it means to live among dissenting, political, and expressive groups.” (184) The reader who makes time for Liberty’s Refuge will be rewarded with an engaging read that blends history, philosophy, and precedent to identify and resolve serious inadequacies in our current approach to conflicts between group autonomy and social equality. If the freedom of assembly has been forgotten, Inazu makes a compelling case that it is high time we remember it.