The Promise and Problems of Treating Religious Freedom as Freedom of Association
28 Pages Posted: 5 Aug 2009 Last revised: 16 Sep 2010
Date Written: January 21, 2010
This Article explores the descriptive, normative, and doctrinal connections between religious freedom and the freedom of association. A series of recent Supreme Court decisions have significantly expanded the constitutional protections afforded to private expressive associations, and several scholars have suggested that the Court’s approach to freedom of association might provide an attractive model for religious liberty. This Article argues that special protections for religious freedom and for freedom of association can both be grounded in the idea of normative pluralism: there is an important value in the promotion of a diverse and pluralistic society, as this gives rise to a wide array of collective identities that an individual can draw upon as he looks to construct and partake in a meaningful life. The development of robust constitutional protections for expressive associations reflects a recognition that certain intimate or ideological associations, even when not overtly religious in character, frequently play a role in citizens’ lives that can be quite similar to -- and perhaps equally important as -- their religious convictions.
The close parallels between religious affiliation and these expressive associations suggest that the two groups should be entitled to many of the same constitutional protections, yet a careful examination reveals several significant differences between the Court’s treatment of religious groups and its treatment of comparable secular associations. With respect to Free Exercise issues, the Court’s decision in Employment Division v. Smith famously rejected any constitutional right to religious exemption from otherwise neutral and generally applicable laws, but its recent decision in Boy Scouts of America v. Dale has given rise to exactly that sort of exemption right for secular expressive associations. On the Establishment side, the First Amendment requirement of viewpoint neutrality often operates as a secular counterpart to the Establishment Clause, but this analogy breaks down when applied to the newly emerging First Amendment category of government speech. These disparities in the protections for religious freedom and freedom of association yield important insights into both doctrines, which I draw upon to suggest several possible responses to restore consistency to the Court’s First Amendment jurisprudence.
Keywords: Freedom of Religion, Religion, Religious Freedom, Religious Liberty, Freedom of Association, Expressive Association, First Amendment, Religion Clauses, Free Exercise, Establishment, Pluralism, Conscientious Exemptions, Nonpreferentialism, Government Speech
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