Thursday, March 23, 2006

The Right (Not) to Associate

Note: new picture at FMPhoto.

Today in Constitutional Law II we will be talking about two cases involving the First Amendment right not to associate. The justification for this right is simple. If you have the right to speech and to peaceably assemble, then this right would be violated if you could not associate with others for the purposes of speech. And your ability to associate with others presupposes the ability to exclude those that you wish to exclude.

We read two cases on the subject. In the first, the Jaycees (a largely commercially-oriented organization) wanted to exclude women from voting membership in their organization. The Court upheld a state's right to force integration of the group. In the second, the Court struck down a state's attempt to force the Boy Scouts of America to allow a gay-rights activist to be a scout leader.

I agree with the result in both cases, but their methods trouble me. In both cases, the Court looked to the speech that the organizations were trying to engage in and tried to determine whether allowing state inteference would interfere with the message of the group. This appalls me. If a group is making a claim that it interferes with their speech, this should be prima facie, indisputable evidence that it does interfere with the speech of the group. If the BSA says that they disapprove of homosexuality, then you should accept that message--if only because the claim in court is a powerful First Amendment-protected message itself.

If you don't like the latter result, try to think about it from another perspective. Assume that an actively racist person is also an avowed homosexual. This gay, racist man is very active with his views, and speaks out against non-whites on a regular basis in full public view. He also wants to join the GBLT, a homosexual-rights group. The GBLT wants to exclude him because of his racist views. Would you want a court determining whether forcing the GBLT to include him would interfere with the message that the GBLT is trying to convey? I think not. The BSA case was a perfect opportunity for the Court to overturn the analysis in the Jaycees case, but they didn't take it. This was one time when stare decisis would not have been greatly offended by doing so.


  1. But of course COTUS does not specifically state that groups have a right to exclude, right? I still don't understand why we cannot likewise presume a right to privacy from what is written.

    Nor do I understand your personal opposition to such a right. I don't recall your having explained it. If you have, could you point me in the right direction? (And if you don't want to get into it here, could you drop me a line explaining why? My address is my Blogger user name at

  2. Interesting. I guess I'd never thought about those cases in that way (or at all, really, except maybe breifly while watching the "Cripple Fight" episode of South Park).

    I have to say I agree.

    On a side note, have you heard about the movie coming out called "Snakes on a Plane"? Yes, that's the real title. It has Samuel L. Jackson in it, and he actually says the line "Get those motherf*cking snakes off my motherf*cking plane!" (supposedly some fans made a fake trailer for the movie and had him say that, and the people making it liked it so much that they added it!) How can it NOT be good? Sorry for the tangent, but that's just OMFGWTFBBQAWESOME!1

  3. I wouldn't say I'm actually opposed to a generalized right to privacy. What I'm opposed to is judges interpreting the Constitution in a spurious fashion. If we want a generalized right to privacy, let's have a constitutional amendment.

    That movie sounds . . . silly.