Freedom of association cases are interesting in that they bring into conflict two competing views of the world: rights-oriented liberalism that holds that a person's identity comes from individual choices (and that government ought to create a framework of laws that remove barriers to choice) and communitarianism, that holds that a person's identity comes from the communities of which an individual is a part (and that communities are an important buffer between the government and the individual).

The leading case on the right of an association to establish and apply its own membership rules is the 1984 case of Roberts v. United States Jaycees.  In Roberts, the Court recognized that the power to determine its own membership is central to the free speech rights of expressive organizations. (Imagine how the speech of the Jewish Anti-Defamation League might be affected if it could be forced to admit as members anti-Semites.)  Nonetheless, the Court in Roberts upheld a Minnesota public accommodations law requiring the Jaycees to admit women as members, in contravention of that organization's rules.  Justice Brennan, for the Court, found that Minnesota had a compelling interest in providing the women of Minnesota the economic benefits that came with membership in the Jaycees.  Justice O'Connor, in a concurring opinion, found that the Jaycees were a commercial organization and therefore subject to state regulation of its membership.  On the other hand, according to O'Connor, a predominately expressive association has an absolute right to determine its own membership.  In subsequent cases in 1987 (Rotary International v Rotary Club of Duarte, 481 US 537) and 1988 (N. Y. State Club Ass'n v New York, 487 US 1), the Court concluded that state laws prohibiting sex discrimination could be applied to each of those private associations.

In January 2000, the Supreme Court decided a closely-watched case involving New Jersey's decision that the Boy Scouts of America are a public accommodation that can be compelled to admit homosexuals. A 5-4 majority of the Court found unconstitutional New Jersey's decision prohibiting the Boy Scouts from terminating the membership of a gay scoutmaster.  The Court held that the First Amendment protected the Boy Scouts, as an expressive organization promoting the view that homosexuality is an unacceptable lifestyle, from excluding scouts on that basis.  The four dissenters questioned whether views with respect to homosexuality were at all central to the Scouts' expressive purposes.

TEST FOR FIRST AMENDMENT ASSOCIATIONAL RIGHTS

VIDEO: Interview with James Dale

Also in 2000, in California Democratic Party v Jones, the Supreme Court ruled, 7 to 2, that California's "open primary" system violated the rights of the Democratic Party to exclude nonmembers from choosing their party's nominees for political office.  Under the open primary system, voters of any party could vote for any candidate on the primary ballot, thus allowing (say) Republicans to determine the Democratic Party's candidates for governor and other state offices. 

Associational rights are viewed differently by the Court when an organization is not being denied outright the right to determine its own membership, but is only being denied public benefits because of its exclusionary policy.  In Christian Legal Society v Martinez (2010), the Court, on a 5 to 4 vote, upheld the decision of a public law school to deny funding and use of certain law school facilities to an organization that refused to accept as members students who "engaged in unrepentant homosexual conduct."