23 Pages Posted: 28 Oct 2012 Last revised: 28 Jan 2013
Date Written: October 26, 2012
This is a review of Professor John Inazu’s book Liberty’s Refuge: The Forgotten Freedom of Assembly (Yale University Press 2012). Liberty’s Refuge is an excellent book with a dual agenda, one descriptive and one normative. The focus of the book is the right, delineated in the First Amendment, “of the people peaceably to assemble.” Inazu begins by tracing the central role that the right of assembly played historically in political struggles, and in public perceptions of the First Amendment, through the middle of the Twentieth Century. He then traces the gradual transformation of the right of assembly, explicitly listed in the text of the Constitution, into a non-textual right of “association” during the 1940s and 1950s, as well as the narrowing of the right of association, combined with the complete abandonment of assembly as an independent right, during the period beginning in the early 1960s. Inazu concludes normatively, by making the case for the revival of freedom of assembly as a robust, independent constitutional right that will provide substantial protection to the internal composition and dynamics of groups.
The bulk of my review summarizes Inazu’s argument, and relates his thesis to the ongoing scholarly revival of interest in the First Amendment, especially aspects of the First Amendment aside from freedom of expression. I conclude by considering one important question which Inazu’s book does not focus on closely, which is the distinctly religious nature of the private groups – i.e., “assemblies – which are the focus of Inazu’s analysis. I note that in recent years most of the disputes over group rights have involved religious or quasi-religious groups such as the Boy Scouts, the Christian Legal Society, and a myriad of religious groups seeking access to public property or resources. When one recognizes the central role that religious groups play in modern association/assembly disputes, however, a conundrum arises: why do these cases typically turn on the Speech and Assembly Clauses of the First Amendment, and the related right of association, rather than on the First Amendment provisions which expressly address religion – the Establishment and Free Exercise Clauses? I note that in fact, recent Supreme Court decisions are quite incoherent on the question of whether regulation of religious groups is best analyzed through assembly/association or the religion clauses. But religion is different, a point that the Constitution recognizes in the religion clauses, especially the Establishment Clause, and by the Supreme Court’s recent decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In particular, the Constitution treats religious and secular groups differently in how they relate to the state, suggesting that we should be looking to the Religion Clauses rather than other, more generalized parts of the First Amendment to resolve these issues.
Keywords: First Amendment, Assembly, Association, Religion, Establishment Clause, Hosanna-Tabor
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