First Amendment rights are hailed as the hallmark of the US constitutional system, protecting religious liberty, freedom of speech, freedom of the press, and freedom of association. But among these rights, freedom of association holds a tenuous position, as demonstrated in the 2010 Supreme Court ruling in Christian Legal Society v. Martinez, which upheld a public university’s policy requiring groups seeking official recognition to accept all students regardless of their status or beliefs. This demotion of freedom of association has broad ramifications for the constitutional status of voluntary associations in civil society, Luke C. Sheahan suggests. His book offers a cogent explanation of how this came about, why it matters, and what might be done about it.
What’s your elevator pitch for Why Associations Matter? How would you describe the book in two or three sentences?
LS: In Why Associations Matter I argue that associations lack adequate protections in Supreme Court jurisprudence. I use concepts from political sociology to provide a way that federal courts can render associational rights so as to appropriately protect the functional autonomy of groups.
What was your inspiration to research and write about the freedom of association and the First Amendment?
LS: I have always been fascinated (and often disturbed) by the way that majorities treat minorities, whether ideological, ethnic, religious, or otherwise, and I have always been interested in the way that our constitutional system provides protection of these minorities against the majority. The First Amendment is an essential means whereby minorities of whatever type can find protection from majoritarian abuse. The primary way this is done is through associational rights for dissenting groups. Even if the majority looks askance at a minority, the persons in the minority can find communal sustenance in association with each other. This is a prerequisite for whatever they may achieve politically and it is valuable in its own right. This is the very heart of “why associations matter” and why freedom of association needs protection in Supreme Court jurisprudence.
Your argument centers upon what you call the “First Amendment Dichotomy.” Why is that noteworthy?
LS: The First Amendment Dichotomy is the tendency in First Amendment jurisprudence to only conceive of associations as reducible to the individual or to the state. This is noteworthy because much of the work done on First Amendment rights is from the perspective of individual rights. This conception has many benefits, but it is also incomplete. In constitutional law as in life an overemphasis on some good things can lead us to ignore other good things.
I am critical of what I call the First Amendment Dichotomy because the Court’s exclusive emphasis upon individual rights and democratic engagement has led it to ignore important associational concerns in its jurisprudence. This isn’t because individual rights or democratic engagement are not important, but because they are not exclusively important. There are other purposes and concerns that need to be taken into account in the jurisprudence to adequately protect First Amendment rights, especially, the freedom of association. By leaving out associations the First Amendment Dichotomy constricts our understanding of all that First Amendment rights can be—and should be.
How is the right of Americans to associate under attack or currently being threatened? If so, how and what can be done to protect the right?
LS: I think the primary threat to the right to associate comes from the misunderstanding of the essential nature of associations and the need to be able to discriminate in membership to maintain the integrity of the organization. The NAACP could never have achieved its success if it were forced to admit racists and even a chess club could never organize effectively around chess playing if it were forced to admit checkers players. The inherent sociality of these groups is the primary thing that requires protection even when the purpose of the groups seems wrong or unimportant to the rest of us.
First Amendment rights are always vindicated as well as threatened in the midst of the political and ideological conflicts of the hour. This is inevitable, but also unfortunate. In the heat of the moment, it is difficult to take the long view and to realize that we need the protections for our freedoms as much as those with whom we vigorously disagree. We all benefit from our respective associations, especially if we are in the minority in some way. If we are not in the minority, history teaches us that we probably will be one day. This is more than a theoretical point. Labor organizers benefited from associational protections for labor organizations in the 1930s and 40s, racial minorities benefited from protections for civil rights groups in the 1950s and 60s, LGBTQ persons benefitted from protections for LGBTQ groups in the 1970s and 80s, and religious persons benefited from protects for religious groups in the 1990s and 2000s.
Each of these groups is more than a collection of individuals, it is a distinctly social organization. To properly protect these social organizations we need to look at the essentially social components of association. This is what I do in my book.
You cite the 2010 Supreme Court ruling in Christian Legal Society v. Martinez as a benchmark case for modern study of freedom of association. Are there other cases that can shed light on the history of the topic?
LS: NAACP v. Alabama (1958) is the first case on freedom of association. There the Court rightly upheld the associational autonomy of the NAACP and created the non-textual right of association. While the Court’s ruling was correct, its reasoning left the textual location of the right of association ambiguous which set the right on an uncertain trajectory, one that eventually leads to its absorption into freedom of speech in later cases. In Roberts v. Jaycees (1984) the Supreme Court narrowed the right of association to “expressive association,” completing the movement began in NAACP. This set the stage for what the Court did to completely sideline the right of association in CLS v. Martinez.
Less attention is paid to cases like DeJonge v. Oregon (1937) where the Supreme Court incorporated the Assembly Clause of the First Amendment against the states and Thomas v. Collins (1945) where the Court explicitly names the Assembly Clause as “a right cognate to those of free speech and free press, and…equally fundamental.” These are essential to understanding the non-expressive importance of associations as well as the better textual location of the right of association in the Assembly Clause.
What is one thing you would like readers to take from your work?
LS: I would like my readers to realize that associations matter—and that they matter to everyone. This is true even for the associations and the people that we don’t like.
If you could have any one person read your book, who would it be and why?
LS: There are two obvious answers to this question but neither would be quite right. The first is a Supreme Court justice. They are the ones with the authority to incorporate the rights of association into their jurisprudence. The second is members of Congress. They could adequately protect freedom of association through legislation such as the “Freedom of Association Protection Act” that I advocate in my book.
But neither a Supreme Court justice nor a member of Congress is the primary person I want to read the book (although I hope they do). I would like the average person to read the book. Mr. Joe Blow American. While the subject of my book is the protection of associations in Supreme Court jurisprudence, the driving impetus of the constitutional argument is the importance of associations to persons. So I think its true relevance is much more concrete. I hope that when the average person reads my book she not only supports public policies that protect the freedom of association, but that she is motivated to personally engage with the associations in her own life.
Luke C. Sheahan is assistant professor in the Department of Political Science at Duquesne University and a non-resident scholar in the Program for Research on Religion and Urban Civil Society (PRRUCS) at the University of Pennsylvania.
