The Freedom (Not) to Associate

The issue:  When does the First Amendment protect an organization's right to exclude certain persons as members?


The phrase "freedom of association" does not appear in the Constitution (although the First Amendment protects the right to peaceably assemble).  Nonetheless, the Court has recognized to separate types of association that are constitutionally protected: (1) intimate association (protected as an aspect of the right of privacy) and (2) expressive association (protected as as an aspect of the First Amendment's protection of free speech).

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.


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."

Does the First Amendment Protect Against Partisan Gerrymandering?

In a closely watched 2018 case challenging a partisan gerrymandering, four justices (Kagan, Breyer, Sotomoyor, and Ginsberg) of the Supreme Court suggested that a First Amendment freedom of association claim would be the appropriate way to challenge the practice.  A fifth justice (Kennedy, now retired) had made a similar suggestion in a previous case.  The case was not decided on the merits because the Court concluded the plaintiffs lacked standing to bring an equal protection claim and did not sufficiently assert the freedom of association claim (which might have given them standing, had they done so).  The plaintiffs will still have an opportunity to show that the district line-drawing by the Republican-controlled legislature of Wisconsin was a deliberate attempt to dilute the voting power of Democrates and weaken the state Democratic party's ability to carry out its political functions. See:

Roberts vs. United States Jaycees (1984)
Boy Scouts of America vs. Dale (2000)
Christian Legal Society v Martinez (2010)

Gay Scout James Dale after oral arguments in 
 Boy Scouts of America vs Dale.


1. What are the differences between the approached taken by Justices Brennan and O'Connor in their opinions in Roberts?  Which approach is better?  Why?
2.  Would Justice O'Connor be more likely to categorize the Boy Scouts as a predominately commercial organization or as a predominately expressive organization?
3.  Was it really of "compelling" importance to the economic well-being of women in Minnesota that the Jaycees be opened to  membership by women?
4.  Does Roberts encourage organizations restricting membership to take strong positions opposing in some way the interests of persons in the category restricted from membership?
5.  What are the two types of association protected by the Constitution?  What are examples of entities, relationships, or organizations that might be recognized as protected under the right of intimate association?
6.  What should Roberts mean for golf clubs, fraternities, and other social organizations that exclude members based on race, religion, sex, or sexual preference?
7.  Would Dale have come out differently if Dale had been a fourteen-year-old scout, rather than a college-aged scoutmaster?
8.  How central to the Scouts' expressive purposes do whatever views it may have on homosexuality appear to be?
9.  Would the Scouts case have come out differently if the official view of the Scouts being challenged was an objection to inter-racial dating, and the exclusion of a scout for inter-racial dating were the issue before the Court?  Why or why not?
10. Would it violate the associational rights of a private expressive association if a city were to deny the association a liquor license because of its discriminatory membership policy?  If it were to refuse to provide water service?  If it warned the association that it could not expect police or fire protection?

 Further Reading
Douglas Linder, Freedom of Association After Roberts v. United States Jaycees,
82 MICHIGAN LAW REVIEW 1878 (August, 1984).

Douglas Linder, The Story Behind Boy Scouts of America v Dale

Jimmie Dale, "Why Did I Challenge the Boy Scouts' Anti-Gay Policy?"

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