The Unsettling ‘Well-Settled’ Law of Freedom of Association

Abstract:     
This article argues that the Supreme Court’s categories of expressive and intimate association first announced in its 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. These indefensible categories matter deeply to groups that have sought to maintain an unpopular composition and message in the face of antidiscrimination laws. These groups have been denied associational protections. They have been forced to change their composition - and therefore their message. They no longer exist in the form they once held and desired to maintain.

The Roberts categories of intimate and expressive association are at least partly to blame. They set in place a framework in which courts sidestep the hard work of weighing the constitutional values that shape the laws that bind us. This article exposes the problems inherent in these categories and calls for a meaningful constitutional inquiry into laws impinging upon group autonomy. It suggests that the Court eliminate the Roberts categories and turn instead to the right of assembly. Our right to assemble - to form relationships, to gather, to exist as groups of our choosing - is fundamental to liberty and diversity.

Number of Pages in PDF File: 60

Keywords: right of association, right of assembly, First Amendment, intimate association, expressive association, Roberts v. Jaycees, Christian Legal Society v. Martinez

Accepted Paper Series