The Freedom of Intimate Association in the Twenty First Century

43 Pages Posted: 29 Aug 2006 Last revised: 4 Dec 2013


This article contends that recent developments in the Supreme Court's jurisprudence have created a historic opportunity for the Court to revisit and clarify its freedom of intimate association doctrine. The article traces the history of the freedom of intimate association, explaining how the Supreme Court in Roberts v. United States Jaycees, the first decision explicitly articulating a right to intimate association, failed to describe the parameters and contours of that right with enough precision to sufficiently guide later decisions. The article describe the resulting split among the circuits in their efforts to implement Roberts' intimate association guidelines, with some circuits applying the Roberts guidelines broadly and others taking a more narrow approach, applying lower levels of scrutiny and only according strong protections to traditionally accepted relationships.

The article proposes that this split may be resolved by applying the principles of the more recent Lawrence v. Texas decision. Although Lawrence is not widely recognized as an intimate association case, the article posits that it is in fact the first Supreme Court decision to actually affirm the intimate associational rights of a litigant, and a case with the potential to resolve the circuit split by defining more specific parameters of the freedom of intimate association. The article proposes a new presumption-based model for future intimate association cases. The proposed model clarifies the level of scrutiny that should be applied in intimate association cases, the types of relationships that may be protected, and the permissible boundaries that should be established for future freedom of intimate association cases. The article explains the advantages of redefining and reviving the doctrine and explores potential applications of the freedom of intimate association in future cases. The article concludes that the Court should avail itself of the opportunity provided by Lawrence to reaffirm and clarify its freedom of intimate association doctrine.

Keywords: Intimate Association, Freedom of Association, First Amendment, Privacy Rights, Liberty, Constitution, LGBT Rights, Gay Rights, Freedom of Intimate Association, Autonomy, Intimate Relationships, Lawrence v. Texas, Bill of Rights, Penumbras, Griswold

JEL Classification: K1, K10, K30

Suggested Citation

Marcus, Nancy C., The Freedom of Intimate Association in the Twenty First Century. George Mason University Civil Rights Law Journal (CRLJ), Vol. 16, p. 269, 2006 . Available at SSRN:

Nancy C. Marcus (Contact Author)

Lambda Legal ( email )

Los Angeles, CA
United States

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