By forbidding CSS from placing children in foster homes, Philadelphia quashes any vestiges of reasonable pluralism on the meaning of marriage.
Today, April 26, the Supreme Court will hear argument in Americans for Prosperity v. Rodriquez. The case involves two California non-profits challenging the state’s requirement that they—and every other non-profit registered in California—disclose their donors to make future law enforcement more “effective” and “efficient.” Over 40 amicus briefs lambasted this embrace of open-ended government surveillance—reflecting an ideological agreement so wide that NARAL Pro-Choice North Carolina and Wisconsin Right to Life joined the same brief. On the surface, widespread consensus in favor of associational privacy is surely welcome. But this agreement masks equally widespread, decades-long confusion over how and why the Constitution protects free association.
As the brief filed by our firm—the Becket Fund for Religious Liberty—explains, that confusion is at the core of this case, and solving it requires regrounding the right of “expressive” association at issue in the text, history, and tradition of the First Amendment’s Assembly Clause. The freedom of assembly has deep historical roots in religious assembly. This history confirms that, despite modern law’s recent emphasis on “expressive” association, assemblies do not exist simply, or even primarily, for expressive purposes. Rather, they exist primarily for formative ones. Shaping people in beliefs, traditions, rituals, customs, and ways of life—regardless of how politically “expressive” they are—requires a robust space outside the individual and the state for the freedom of assembly.
But the Supreme Court has yet to appreciate the formative core of association, nor has it clearly rooted the right of association in any constitutional provision. The result has been short shrift to the Constitution’s protection of civil society.
This case provides the Supreme Court with an ideal opportunity to reground free association in the Assembly Clause and recognize that assemblies do not simply allow individuals to express themselves. Rather, they form citizens in the virtues that make and sustain self-government.
Free Assembly, Religious Assembly, and Moral Formation
As Michael McConnell explained, the “precursor” to the First Amendment’s freedom of assembly was “the freedom to gather together for religious worship.” Indeed, the word “assembly,” notes John Inazu, itself derives from the Greek word “ekklesia,” which is also the basis for “ecclesiastical” and has always encompassed a distinct understanding of political association, rooted in religion, that transcends the temporal concerns of state politics. Understanding associational life as distinct from the state depends on the “norm” of a private sphere—a norm, as Father John Courtney Murray put it in We Hold These Truths, “first found” in recognizing the freedom of religious institutions to govern themselves independent of secular influence.
The modern concept of private, voluntary assembly began when, as Larry Sidentop discusses in Inventing the Individual, Christianity brought a “new conception of community” into being. Before Christianity, social order was defined around the state’s “brute force,” while Christianity’s development required shaping social order around “the autonomy of the church and the moral sphere.” Initially, the private assembly pursued by Christians was less about separate legal authority and more about protection from “official hostility and even persecution.” For that reason, “the practices of the earliest Christians,” Sidentop says, included “[s]ecret meetings in private houses, burials in catacombs,” and “little or no self-advertisement.”
Yet even as Christianity gained prominence and acceptance in the Roman Empire, it continued developing the notion of a private sphere of associational authority—now one with legal rights. When the Roman Emperor Constantine allowed private persons to bequest property to the Catholic Church, Western law inaugurated “a corporate capacity for local congregations.” This principle carried over into the Catholic Church’s creation of canon law during the Middle Ages, as it sought to safeguard its self-governance from secular influence—a development that was itself inspired by the evolution of monasticism into voluntary associations.
It was this history that the Supreme Court alluded to in Wisconsin v. Yoder when it admonished Americans to “not forget that in the Middle Ages important values of the civilization of the Western World were preserved by members of religious orders who isolated themselves from all worldly influences against great obstacles.” As Father Murray put it, a private sphere free from state control did not—and could not—claim legal recognition simply as “an ‘idea’ or an ‘essence’ but a Thing, a visible institution that occupied ground in this world at the same time it asserted an astounding new freedom on a title not of this world.” Protecting that separate sphere lies at the heart of free assembly, and for purposes crucial to self-government.
“Nothing,” Alexis De Tocqueville said in Democracy in America, “is more deserving of our attention than the intellectual and moral associations of America.” Democracy’s emphasis on self-actualizing equality encourages citizens to “always consider themselves as standing alone, and they are apt to imagine that their whole destiny is in their own hands.” Without the formation of institutions, particularly religious institutions, this tendency allows man to “forget his ancestors, . . . hide his descendants and separate his contemporaries from him.”
When the aspirations of individualism and equality are unmoored from formative association, Tocqueville is clear about what follows: despotism. As man becomes convinced that he owes nothing to his past, only needs to regard his neighbors on his terms, and has no obligation to impart traditions to future generations, he will withdraw to “the solicitude of his own heart.” Nature abhors a vacuum, and so does the State. It proceeds to fill the social space once occupied by the religious institutions that formed citizens in the virtues needed for self-governance. As Robert Nisbet would detail over a century after Tocqueville in The Quest for Community, it is precisely this erosion of “the area of association” once defined by “the family, the local community, and the church” that, in turn, erodes an individual’s “engendering” in the virtues of “work, love, prayer, and devotion to freedom and order.” As civil society disappears, so does man’s capacity for governing himself.
The Founders Protected Formative Assembly
The ratification debates over the Assembly Clause confirm that the founding generation appreciated the importance of formative associations. In a telling exchange, Massachusetts Congressman Theodore Sedgwick proposed excising the Assembly Clause from the First Amendment altogether on the ground that it was merely free-speech “minutiae.” This was rebutted by the invocation of William Penn being infamously tried for unlawful assembly after he and his fellow Quakers attempted to meet in secret. This trial was well-known to the Founders.
As Professor Inazu recounts, Penn’s Quaker meeting had violated England’s 1664 Conventicle Act, which forbade “Nonconformists” to the Church of England from “attending a meeting, or assembling themselves together.” Quakers, of course, are not Anglicans, and a company of soldiers prevented Penn and his group from entering their meetinghouse for their unlawful conventicle. Undeterred, Penn began delivering a sermon to Quakers assembled in the street. He was arrested, taken to the courthouse, and charged with unlawful assembly. Penn was later brought to trial in a now-famous sequence of events that included a charge for contempt after he refused to remove his hat in court due to his belief that hats should only be removed before God, not men. After Penn’s trial was invoked, the House of Representatives—by a considerable majority—voted down Sedgwick’s removal effort.
Freedom of assembly was likewise crucial in protecting the growth of founding-era political parties and protecting 19th-century abolitionists and suffragists. As our brief details, the practices of the Sons of Liberty, widespread use of anonymous political speech, and the political reactions to the anonymous meetings of the Democratic-Republican clubs all confirm a robust protection for anonymous assembly with expressive purposes. This history is indispensable to fully appreciate the Assembly Clause’s scope.
But as the invocation of Penn’s trial during ratification shows, protecting political expression was never the Assembly Clause’s primary historical purpose. Other examples abound throughout the republic’s early days and well into the antebellum era. President Jefferson, for example, reassured Ursuline nuns in New Orleans that, despite the Louisiana Purchase, “the principles of the constitution and government of the United States are sure guarantee . . . that your institution will be permitted to govern itself according to it’s [sic] own voluntary rules.” And for abolitionists, as Akhil Reed Amar explained in The Bill of Rights, “the core right of assembly seems to [have been] the right of blacks to assemble peaceably on the Sabbath for the worship of [the] Creator” according to their own religious traditions. These examples confirm that the historical core of free assembly is preserving social space for what Inazu calls “a kind of politics distinct from the politics of the state.”
“Expressive” Association Erodes Self-Government
Unfortunately, the freedom of assembly began losing its formative core after the Civil War, when the Supreme Court articulated the Assembly Clause as protecting simply the right to petition. After the First Amendment was applied against the states, some Supreme Court cases (like Thomas v. Collins and De Jonge v. Oregon) attempted to restore the freedom’s broader scope. But after the Court decided NAACP v. Alabama in 1958, the practical effect was to supplant the Assembly Clause with a textually unmoored right to “expressive” association.
It might seem ironic to view NAACP v. Alabama—a case where the Supreme Court rightly prohibited Alabama from forcing the NAACP to disclose its membership list during the Civil Rights era—as the source of unstable constitutional protection for civil society. But this case began the modern conditioning of free association on “expressive” values and accordingly had trouble rooting the right in any particular constitutional provision. Rather than look to the Assembly Clause as the source of formation-focused associational freedom, the Court identified a right to “expressive” association protected by a “close nexus” between free speech and free assembly. It then claimed this freedom is an “inseparable aspect of the ‘liberty’ assured by the Due Process Clause.”
This confused analysis led to inconsistent, unclear protections for a range of civil society assemblies. For example, the Supreme Court has held that the Boy Scouts are sufficiently “expressive” to avoid government review of their membership standards, but the Jaycees are not. By narrowly focusing on “expression,” the Court has also indulged the very problem that could have doomed the Assembly Clause’s ratification—treating it like free-speech “minutiae.” In Christian Legal Society v. Martinez, for example, the Court ignored any formative freedom a campus religious group possessed around certain beliefs. Instead, the Court “merged” the group’s free association claim into free-speech doctrine. And in Americans for Prosperity, the Ninth Circuit below concluded that nothing “is distinguishable” between the First Amendment’s application to expressive political associations and any other assembly—such that the lower standard of review for disclosure requirements in political campaigns controlled.
But the problems are not simply doctrinal. Failing to protect the formative aspects of associational life—which precede the “expression”—fails to see any constitutional value in citizens being shaped in certain virtues and moral visions needed for self-government. Instead, understanding even associational freedom in terms of self-expression indulges the cultural trend described by Yuval Levin in A Time to Build: that institutions should be mere “platforms” for vain self-performance, rather than molds for character. As Tocqueville and Nisbet warned, individuals cannot govern themselves if they are not formed beyond their desires.
“Cancel culture” manifests this danger in an acute way. Deploying the invasive tools of modern technology, an individual’s right to self-expression encourages him to “cancel” any assembly he finds distasteful. This makes it easier than ever for the isolated, passion-driven individual to demand that government power be deployed against the offending assembly’s moral vision. The space for civil society is simply not allowed to exist. These developments reinforce the necessity of recovering the formative freedom of assembly.
Recovering the Full Freedom of Assembly
Rather than continue allowing “expressive” association to emanate from the penumbras of various constitutional provisions, Americans for Prosperity presents the Court with an opportunity to reground the freedom of association as part of the Assembly Clause.
The Court’s treatment of a distinct sphere of authority for religious institutions makes for an instructive guide—both for doctrinal and cultural reasons. Culturally, as Tocqueville explained, the formative qualities of religious institutions make them “strong on the very point on which democratic nations are weak.” That is, they temper man’s “inordinate love of material gratification” and self-aggrandizement through duties that require him to look beyond himself and beyond politics for his true worth, identity, and salvation. Doctrinally, the Supreme Court has consistently recognized that the private sphere of religious institutions is meant to be—as Justices Alito and Kagan said—a “shield” against certain laws imposing a contrary morality; a space where, to quote Yoder, the “hydraulic insistence on conformity to majoritarian standards” can be resisted through a distinct moral witness. To be sure, religious institutions possess a constitutionally and culturally distinct role in America, so not every aspect of their constitutional solicitude directly maps on to every other social institution. But they are, as McConnell says, “the clearest and most firmly established examples of ‘civil society’ institutions.” The Court’s principles toward them can therefore help guide the recovery of a formative freedom of assembly.
As our brief explains, only interests of the highest order (such as public safety) pursued through the least restrictive means can properly restrict the freedom of assembly. This high standard, known to lawyers as “strict scrutiny,” is not only reflected in the Supreme Court’s pre-“expressive” association approach to free assembly. It has been well developed in protecting religious institutions, with multiple analogies to the assembly context. And applying it to the Assembly Clause fits with recognizing the freedom as one not merely encompassing expression, but principally allowing the formation of moral visions that may be counter to the zeitgeist—visions that, under a lower standard of review, majorities could squelch out of existence, or at least into submission. As our brief explains, California’s compelled donor disclosure requirement comes nowhere close to meeting this high standard.
In concluding his discussion on civil society’s connection to political freedom, Tocqueville rightly identified the stakes if restrictions on free assembly “were not confined within narrow limits.” Restricting the freedom for exigencies may be necessary. “[B]ut still it is well that the nation should know at what price these blessings are purchased.” Mandatory donor disclosure allows the government to monitor—and opponents to discover—assemblies forming congregants in ways that stand athwart the latest fashions. Approving that tool because it is an acceptable regulation of how one expresses himself politically continues the short-sighted view that freedom’s worth is found either in the self or in the state. Reviving the formative freedom guaranteed by the Assembly Clause would protect the space where life is fully lived—outside the individual and the state.