The rule of law is not at all the same thing as the rule of laws, or the preeminence of law in our lives.
If the quality of a book can be determined from the stature of its critics, then I have written a very good book. The distinguished legal scholar Paul Horwitz graciously describes my arguments in Why Associations Matter, while reserving some criticism for my framing of the problem and my proposed reforms. As author of one of the essential books on the First Amendment, and one that greatly shaped my own views, he would know. Nonetheless, I think my book prevails against his criticisms.
Horwitz’s first criticism is that I exaggerate the threat to associational freedom. I title the first chapter “Political Sociology and the Problem of the Vanishing Freedom of Association.” He points out that the current Court is much more likely to support freedom of association than to disparage it: It is hardly vanishing.
I am less sanguine about the prospects for freedom of association before the Court because of the doctrinal problems I detail in the book. The Court provides protection for associations only to the extent it deems them “expressive associations.” Furthermore, the Court has narrowed the understanding of what “expressive” may cover to the point where in Christian Legal Society v. Martinez there is no sense of association at all, but only individuals’ speech rights. To the extent that the freedom does not vanish, it will be because Martinez becomes a curious historical footnote, a doctrinal dead end. If the court is to recognize freedom for associations to the extent I (and Horwitz) think that it should, it will need to draw from constitutional reservoirs it has hitherto avoided.
Horwitz has some reservations about my treatment of Martinez. Horwitz identifies his own view of “nested institutions,” by which he means that certain groups that are nested within larger institutions should be under the control of those institutions. He agrees with the Martinez Court that public universities should be able to determine how they structure their own student organization fora. I agree that private universities should be able to make different decisions about this matter, but that public universities as public institutions should be constrained by the First Amendment in cases like this. While they would be free to create departments, colleges, and administration offices in whatever way they like, public universities should not be free to create a limited public forum (which is how the Court has treated student organization forums) and then treat it as a non-public forum. This is why I think Martinez is so dangerous. The Court insists that student organizations constitute a limited public forum, a place where First Amendment rights are practiced. Then it refuses to grant the primary right at issue: the ability of groups to form around their own purposes. This is not about university support for student groups, but about the university flat-out refusing to acknowledge associational rights in the First Amendment space it has created.
One important point that Horwitz does not mention is that while the Court has tethered freedom of association to the Speech Clause, I anchor my conception in the Assembly Clause, drawing from John Inazu’s work. The right of assembly, as Inazu sees it, protects relationships between the individuals assembling, which I cast as the “social” realm that First Amendment law ought to protect. This perspective tells us two things. First, we have a textual mandate to pursue the inquiry. Second, we have to come up with a way of speaking about the spaces preserved between the individuals associating. We have to discuss the “reality of the social.”
Horwitz finds my discussion of the social realm intriguing, but he is disappointed that I don’t do more to define terms like “voluntary associations” in my judicial solutions. The reason I do not do so is related to another criticism Horwitz brings to bear: the incompetence of judges to determine such things. I do not give the Court more guidance in my proposed reforms because, as he says, judges are ill-equipped to rule upon the sociological questions that I entertain. I think we can expect the judiciary to rule upon the scope of the textual right of assembly when it implicates that plethora of voluntary associations to which that Clause may apply. I don’t think that we need judges to understand sociological niceties to uphold limits to government intervention.
But I could be wrong here. Maybe we (in the scholarly realm) will have to engage in more judicial handholding on this matter. Currently, the Court can distinguish between expressive associations and commercial associations, more or less, and it can identify religious organizations, as Horwitz notes. Given the textual mandate of the Assembly Clause, it has to distinguish a category of non-expressive associations that receive First Amendment protection. The way to do so, I argue, is by recognizing the necessary property of social groups that Robert Nisbet called “functional autonomy,” by which I mean that group’s ability independently to determine the terms of its association. This is in contrast to the Court’s current focus on “expressive association,” which only provides groups with such protections if they are related to the expressive potential of the group, protected under the Speech Clause.
In the last chapter, I address objections to my argument and nuance my proposals in various contexts, especially regarding groups with race and status-based membership policies. Horwitz points out that some of my distinctions do not bear out my argument on the sociological importance of groups. The distinction between commercial and non-commercial groups is a case in point. I argue that associations are valuable for their identity-forming qualities. Wouldn’t that be true for commercial associations as well? It would, but there is a long-standing distinction between commercial associations and non-commercial associations. We can recognize a governmental interest in restraining discretion in employment to enhance individual economic prospects while denying that such an interest overrides the associational rights of other associations. As I write, we have to balance between the interests of individuals, the state, and associations. The Court has ignored the interests of the last category and my book is trying to correct that jurisprudential defect while not upending civil rights law.
As Horwitz points out, it is hard not to have some sympathy for judges trying to plot a course between civil rights laws and First Amendment protections for groups. But if the state is going to insist on manifestating itself as the administrative state, it can’t do so at the expense of First Amendment rights. It is going to have to thread the needle: It is going to have to make the distinctions required by the Constitution and discover the contours of whatever it is that the Assembly Clause protects. This means that it has to do a better job of distinguishing between the commercial groups where civil rights laws apply and the groups that have a First Amendment right to functional autonomy.
Horwitz suggests that it is hard to sustain the “race is different” approach that I take to some associations, allowing for gender and sexual orientation membership requirements but not race. I admit that I could be wrong in making the distinction I do, and I provide a number of counter-arguments to my distinctions in the book.
But beyond the substance of my argument, this approach helps us think through the necessary balancing between the interests of the state, the individual, and the association regarding these issues. The context in which I make the distinction is over tax exemptions for educational institutions. I allow that the state may have an interest in individual economic advancement. So while it may put pressure on educational institutions with race-based policies, it may not put the same pressure on those with policies that make distinctions on the basis of sex or sexual orientation. Why not? I argue that rising social equality cuts against the government’s argument for its ability to make such distinctions. Studies of graduation and matriculation rates for female and LGBT students indicate that the government has little empirical basis for intruding upon associational rights in those areas. Furthermore, I think it would lead to outcomes that many find ridiculous, such as stripping tax exemption status from Wellesley College for refusing to admit men or Wheaton College for its policies on sexual mores. Of course, I could be wrong. This method of inquiry may yield different conclusions from the ones I draw. Nonetheless, it brings salutary attention to associational rights and boundaries beyond what the Court has hitherto provided.
While expressive association was helpful in balancing between private groups and civil rights law, it did so at the expense of associational rights for non-expressive groups. If Inazu is right on the location of those rights in the Assembly Clause and Horwitz is right about First Amendment institutions as the primary locus for the practice of First Amendment rights, then more needs to be done to protect these groups in Court doctrine. Viewpoint and content-neutrality are the mechanisms the Court has used to discern whether there are First Amendment violations of associational rights. Horwitz writes that these “and other standard doctrinal devices are highly imperfect at describing social life but very useful at constraining courts and governments.” But these mechanisms have proven inadequate to constrain governments when it comes to non-expressive groups. First Amendment Pluralism is a perspective that accomplishes this by giving us a way to speak about the social space where these rights are practiced, as it focuses attention on the fundamental principle at issue in freedom of association: the functional autonomy of the association.