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Does the First Amendment Protect the Freedom of Association?

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The Augusta National Golf Club — where the Masters golf tournament has been played since 1933 — is in the news again, and not because Tiger Woods failed to earn a fifth green jacket.

The exclusive club has come under fire again because of its male-only membership policy. And although the club has traditionally extended membership to the CEOs of its corporate sponsors, one of its major sponsors — International Business Machines (IBM) — has a new female CEO, Virginia Rometty, who has not been asked to join. The past four CEOs of IBM have all been Augusta members.

“It’s just an embarrassment that it’s still all-male,” said Debora Spar, president of Barnard College in New York — an all-women’s college. Seeming oblivious to the irony, she added, “Any argument that can be made anymore for male-only recreational sites is just kind of past its day.”

Soon after Bubba Watson won the Masters tournament at the all-male Augusta last month, Jennifer Tyrrell was removed as a leader of her local Tiger Scout troop in Ohio, not because she is a woman, but because she is a lesbian.

Tyrell, who lives with her partner and their four children, allowed her seven-year-old son to join the Scouts in Bridgeport, a small town across the Ohio River from Wheeling, West Virginia. After she was drafted to lead her son’s pack, she told parents at their first meeting about her sexual orientation.

The Ohio River Valley Council of the Boy Scouts of America told her last month that she had to resign because of her sexuality. Founded in 1910, the Boy Scouts has about 2.7 million youth members and more than 1 million adult volunteers. The organization believes that homosexuality is incompatible with membership or leadership positions. A board member of the Ohio River Valley Council has now resigned to protest Tyrrell’s ouster.

The Augusta National Golf Club and the Boy Scouts have one thing in common — they are both private organizations that practice freedom of association.

Does the First Amendment protect the freedom of association?

The First Amendment reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The answer is: technically, no; legally, yes; but practically, it doesn’t matter.

 

Clearly, the First Amendment protects the individual rights to freely exercise one’s religion, speak freely, publish freely, peaceably assemble, and petition the government. Technically, the freedom of association is not mentioned. It is sometimes subsumed under the freedom of assembly but usually by limiting it to things such as trade unions and collective bargaining.

Legally, the freedom of association is considered to be a fundamental right protected by the Constitution. In the Supreme Court case of N.A.A.C.P. v. Alabama(1958), a unanimous Court ruled that the NAACP did not have to reveal to the Alabama attorney general the names and addresses of the NAACP members in the state because it would violate the NAACP members’ freedom of association. Writing for the Court, Justice John Marshall Harlan II said in the decision that

immunity from state scrutiny of membership lists … is here so related to the right of members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment. [Alabama] has fallen short of showing a controlling justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of membership lists is likely to have….

Freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” ensured by the Due Process Clause of the Fourteenth Amendment.

 

In the circumstances of the NAACP case, compelled disclosure of the petitioner’s membership lists was likely to constitute an effective restraint on its members’ freedom of association.

Inviolability of privacy in group association may in many circumstances be indispensable to the preservation of freedom of association, particularly where a group espouses dissident beliefs.

In a later case that directly relates to the woman recently dismissed from her leadership position in the Boy Scouts, the Supreme Court ruled in Boy Scouts of America v. Dale(2000) that the Boy Scouts could revoke the membership of a former Eagle Scout and assistant scoutmaster (James Dale) when it found out that Dale was a homosexual and a gay-rights activist. To force the Boy Scouts to do otherwise abridged the organization’s right to freedom of association. As Chief Justice William Rehnquist wrote in the majority opinion,

Applying New Jersey’s public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts’ First Amendment right of expressive association. Government actions that unconstitutionally burden that right may take many forms, one of which is intrusion into a group’s internal affairs by forcing it to accept a member it does not desire.

But practically speaking, whether the First Amendment, the Fourteenth Amendment, or any other part of the Constitution mentions the freedom of association is irrelevant. Likewise, whether the Supreme Court finds the freedom of association in the First Amendment, the Fourteenth Amendment, or any other part of the Constitution is irrelevant.

 

The Bill of Rights — of which the capstone is the First Amendment — was added to the Constitution in 1791 at the insistence of the Anti-Federalists. Contrary to what most Americans probably think, the Bill of Rights does not grant anyone rights. What the government grants, the government can take away. Since no power was granted to the federal government in the body of the Constitution to infringe what are commonly referred to as Americans’ “First Amendment freedoms,” the government has absolutely no authority to do so. That is why James Madison, who did not initially support adding a bill of rights to the Constitution, said that no “great and important power” could be exercised by Congress unless it was “evidently and necessarily involved in an express power.” The First Amendment merely reinforces the idea that the federal government lacks the authority under the Constitution to abridge Americans’ existing freedoms. The individual rights to freely exercise one’s religion, speak freely, publish freely, peaceably assemble, and petition the government are natural rights independent of the Constitution — just like the right to freedom of association.

The freedom of association simply means that a person has the right to associate, not with whomever he chooses, but with whoever is willing to associate with him. Inherent in the right to associate is the right not to associate. Any person has the right not to associate with whomever he chooses.

In a free society, any person or group of persons has the right to associate with any other person or group of persons willing to associate with him or it on the basis of any standard and for any reason. And likewise, any person or group of persons has the right not to associate with any other person or group of persons on the basis of any standard and for any reason.

It doesn’t matter whether a government bureaucrat or a person who was refused association believes that the actions of the refusing person or group are illogical, unreasonable, irrational, hateful, discriminatory, bigoted, or racist. What matters is freedom.

The freedom of association is just as important as any of the “First Amendment freedoms.” Neither government nor society has the authority to force a person or group to associate with another person or group that they don’t want to associate with. In a free society, it can’t be any other way.

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