What exactly is freedom of association? It is not one of the five freedoms listed in the First Amendment—freedom of speech, freedom of religion, freedom of the press, freedom of assembly, and freedom of petition (1). However, some rights in the Constitution do not have to be enumerated clearly and distinctly in order for the Supreme Court to interpret that they are there.
An example is the right to privacy, which formed the controversial basis of Roe v. Wade (2). The Supreme Court ruled that women had the right to choose an abortion based on the right to privacy inherent in the Due Process Clause of the Fourteenth Amendment (2). This right to privacy, or a “guarantee of certain areas or zones of privacy,” is implied in the Constitution in the First, Fourth, Fifth, Ninth, and Fourteenth amendments, as well as in the “penumbras” of the Bill of Rights (2). Although opponents of the right to privacy have alleged that it is a construct of judicial activism and implied nowhere in the Constitution, the basic premise behind it—that an individual should be protected from government intrusion into private affairs—is one that undoubtedly most Americans would agree with.
Similarly, freedom of association is also a protection from governmental intrusion into private affairs—it encompasses an individual’s right to form relationships and interact with whatever groups and individuals one chooses. The Supreme Court has recognized two forms of freedom of association: intimate association as well as expressive association (3). The former stems from the right to privacy and establishes that an individual can form intimate relationships with whomever he wishes, and the latter stems from the First Amendment’s rights to assembly and free speech. We shall only be concerned with the latter right here.
The freedom of expressive association, in other words, encompasses an individual’s right to express his views by joining a group with whom he identifies. As a member of this group, an individual has the freedom to assemble with this group and speak out on behalf of it. An individual also has the right to divulge information about the group or to keep it secret as he wishes. Furthermore, in order for a group to qualify for protection under freedom of expressive association, it must be “defined by common political, cultural or economic activism” (4). Thus government cannot oppress an individual merely for associating with one group or another because the activities of that group fall under First Amendment protections.
Freedom of association protects—or should protect—unpopular minorities from oppression by the majority. For instance, in NAACP v. Alabama, the Supreme Court ruled that the state could not force the NAACP to reveal the names of its members (4). This is because the Court recognized that by naming names, the NAACP would compromise the confidentiality of its members and their ability to express their message would be undermined. In a period when civil rights issues were very controversial, revealing the identities of NAACP members in a location in which they would probably face censure and discrimination would limit their freedom of speech. Even though private organizations or individual citizens would most likely carry out this discrimination, the state still has a role in attempting to force the NAACP to name names. Thus the Supreme Court is protecting the right of members of the NAACP to freely associate with that group and their freedom to not speak out on sensitive group information.
Now freedom of association can become controversial because it implies the freedom to not associate with a group or individual of one’s choosing as well (5). Therefore the state cannot force a private organization to associate with individuals whom it excludes from its membership. This was established by Boy Scouts of America v. Dale, in which the Supreme Court ruled that the Boy Scouts had the freedom to fire a gay scoutmaster based on its expressive belief that homosexuality is unacceptable (6). Thus the Supreme Court ruled that the New Jersey state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation did not apply to the Boy Scouts as the Boy Scouts are considered an expressive private organization. In this case the Supreme Court prevented the New Jersey government from interfering with an organization’s freedom of association. This case does not indicate that anti-discrimination laws are invalidated completely. For instance, it is illegal to discriminate in hiring because of the Civil Rights Act (7). This is because there is a greater interest in protecting the Fourteenth Amendment rights of groups that have been historically discriminated against in the case of employment. In general, however, freedom of association indicates that private groups are free to discriminate if they are expressive organizations.
A court which espouses freedom of association must be a principled one. It will come under attack from both supporters of diversity and opponents of diversity. But its stand on freedom of association—that it should be equally applied to all—is the most tolerant one. Freedom of association will function best to protect a democratic society and system of government only when it is applied judiciously, however. The Supreme Court can easily abuse its application of the freedom of association to discriminate or to mandate relationships. We must trust the judicial branch of our government to function independently and justly so that our own freedom of association is free from governmental interference.
Disclaimer for the last paragraph: I recognize that the Supreme Court and the judicial branch are not the same entity.However, the Supreme Court is the most prominent representation of the judicial branch, and my use of it can be interpreted as synecdoche.