Discrimination, Wisconsin v. Yoder , and the Freedom of Association
17 Pages Posted: 28 Apr 2020
Date Written: 2016
This Essay, which is a commentary on Professor Lawrence Sager’s 2015 Richard J. Childress Lecture at St. Louis University School of Law, considers and critiques the argument that the constitutional freedom of association—not the right to free exercise of religion—grounds the entitlement of some institutions to be exempt from laws that apply to the public more generally. It accepts the notion that in certain circumstances, the freedom of association may, in fact, provide constitutional protection from generally applicable anti-discrimination laws for some tight-knit associations. These circumstances are where a legal mandate conflicts with a clearly defined purpose or mission of a voluntary association; where an organization’s insiders rather than outsiders are burdened by the exemption; and where the association is non-commercial, involves close relationships among its members, and plays a meaningful role in members’ lives. At the same time, this Essay argues that it is important for courts to play a role in ensuring that these requirements are actually met in order to counteract the tendency of the category of protected associations to expand, and of parties to exploit the category’s ambiguities to their own advantage.
Keywords: First Amendment, free exercise clause, freedom of association, voluntary associations, Wisconsin v. Yoder, Burwell v. Hobby Lobby
JEL Classification: K39
Suggested Citation: Suggested Citation