St. Patrick’s Day parade, Boston. (Massachusetts Office of Tourism).
The right (or freedom) of association has been recognized in Constitutional law since a major 1958 case in which the state of Alabama issued subpoenas for the records of the civil rights group, the National Association for the Advancement of Colored People.
The NAACP provided its financial records, and the names of its officers, but refused to provide its rank-and-file membership records because of the likelihood of reprisals.
The Supreme Court unanimously ruled that the First Amendment protected the NAACP’s right of association. “It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association.”
Writing in the Yale Law Journal, Thomas I. Emerson noted that members of other groups (the Ku Klux Klan and the Communist Party) were deemed sufficiently dangerous to override First Amendment concerns, but that the state of Alabama’s interest was not sufficient in the NAACP case.
Subsequent right of association cases continue to uphold a fundamental right to protection of confidential membership lists.
Right of association and public accommodations laws
A major point of conflict in 20th and 21st century Constitutional law has been the tension between the right of association and the right to equal public accommodations. This accommodations right was codified in Title II of the Civil Rights Act of 1964 and related state laws that ended racial segregation in the US.
Under Title II, bars and restaurants can’t tell people which kinds of hats or turbans to wear, and hotels can’t refuse service to one kind of customer while providing it to another kind. Under Title II, people have the right to full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation. They cannot be treated differently by a place of public accommodation because of race, color, religion, or national origin.
However, there are instances in which the public accommodations law sweeps too broadly, the court has said.
For example, in the Hurley v Irish-American Gay Lesbian and Bisexual. group of Boston (1995) the US Supreme Court said that the LGBT community could be excluded from a Boston St. Patrick’s Day parade, since it was organized by veterans groups who have a right of association. The veterans can decide who they will include in their parade, the court said, and the state of Massachusetts’s public accommodations law could not be used to deny a right of association, since that would be akin to forced speech. The parade was protected speech, the court said, and requiring the veterans to include voices they wished to exclude would impermissibly require them to “alter the expressive content of their parade.” However, the court ALSO said that the LGBT community also has a right to parade, too, and can exclude veterans if they like.
The decision was controversial, and by 2015, the two parades were combined in a show of amity and reconciliation.
Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) — Court held that student fees must be distributed in a content-neutral manner and that conservative student publications cannot be excluded from funding. In particular, a religious publication could not be denied student publication funding on the basis of its religious orientation. “A public university … may not … silence the expression of selected viewpoints… Viewpoint discrimination poses danger to First Amendment speech principles in (1) granting the state the power to examine publications to determine whether such publications are based on some ultimate idea and if so, for the state to classify such publications, and (2) chilling individual thought and expression; such danger is especially real in the university setting, where the state acts against a background and tradition of thought and experiment that is at the center of the nation’s intellectual and philosophical tradition..”
Boy Scouts of America v Dale (2000) — The court ruled that the Boy Scouts had a constitutional right to freedom of association when “the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.” Although precedent – setting, the case is now moot for the Boy Scouts because changes in public opinion have led to changes in policy.
Christian Legal Society v Martinez (2010) — Student groups have to accept all students regardless of beliefs. FIRE has discussed this CLS case in light of state initiatives to allow these groups to choose their own members.
303 Creative v. Elenis (2023) — a case involving the balance between individual religious rights and public accommodations. In 303 Creative, the Supreme Court ruled that the First Amendment prohibits the state of Colorado from forcing a website designer to work with content that conflicts with her beliefs, such as gay marriage.
The case is different from a ban on commercial discrimination based on sexual orientation in the 2018 decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. In 303 Creative, the court said that pure speech (such as building a web site) was different from non-speech commercial activity that would fall under laws banning discrimination. In the 303 Creative opinion, the court said: “To put this case in Hurley’s terms, (the public accommodations law) is not just forcing Smith to display an objectionable banner, but to design and create the banner as well.”
The 303 Creative decision also seems to call into question the 2014 case Obergefell v. Hodges in which the court said that bans on same-sex marriages were unconstitutional.
Justice Sonia Sotomayor’s dissenting opinion in 303 Creative notes how far the decision crosses the line separating church and state: “Today, the court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.” This is a backlash against people’s rights, she says. “New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.”