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Who’s Afraid of the Freedom of Assembly

You do not want to miss Anthony Deardurff’s excellent analysis of John Inazu’s important new book Liberty’s Refuge: The Forgotten Freedom of Assembly. Deardurff picks up where the Court left off in Christian Legal Society v. Martinez. Here is a snippet of Deardurff on Inazu:

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)