The Forgotten Right of Association
by David Hood
The Century Club of New York City, an all-male social
club, was told by city officials a few years back that it no
longer could refuse to admit women members. The Club,
thinking that private clubs aren't subject to such public
regulation, took their case to the Supreme Court, arguing that
the rights of privacy and association gave them the power to
set their own membership rules. After all, this was the way
the courts had always viewed private clubs.
In 1988, though, the Court decided that it would begin to
make the rules. In a powerful opinion written by Justice
Sandra Day O'Connor, the Court ruled that all-male clubs could
no longer exclude female members, since such exclusion denied
the women access to business deals with club members. No
longer would the Century Club, or any other men's club, be
allowed to hang a "No Girls Allowed" sign outside their
"clubhouse."
No consideration was given to the rights of club members
to associate with whomever they please. Freedom of
association traditionally has been one of the central
foundations of the American way of life. This freedom enjoyed
some measure of protection throughout our nation's history, as
an inherent part of our First Amendment liberties. As early
as the 1830's, Alexis de Tocqueville noted this American trait
with favor in his book Democracy in America. "In no country
in the world has the principle of association been more
successfully used or applied to a greater multitude of objects
than in America," he wrote. Unfortunately, our judiciary's
support for the right of citizens to freely associate with
each other has greatly wavered over the years, as "substantive
state interests" have been allowed to supersede human liberty.
Freedom of association can take many forms. The doctrine
would allow people to organize formal groups under any
mutually agreed upon guidelines, including criteria for
membership. It also would allow a person to become friends
with anyone he chooses, or to invite any person onto his
property. (One possibly legitimate caveat would be cases of
criminal conspiracy.) The obvious corollary to these
liberties is the freedom not to associate, since state action
to force association between two parties is as unjust as
preventing them from voluntarily associating.
Modern jurisprudence has taken a curious view of this
right. Associational liberty has been upheld in some
situations. Landmark cases in this century allowed trade
unions to organize, for instance, and prevented governments
from outlawing certain political groups like the Communist
Party. Privacy also has been seen as an important value. One
1961 case defended, correctly, the right of the NAACP to
withhold its membership list from the State of Alabama.
(NAACP v. Alabama, 357 U.S. 449)
However, the courts have recently eroded the rights of
private citizens to choose with whom they will associate.
Associational freedom has lost out to "state interests" like
foisting racial or sexual equality upon unwilling subjects.
In 1964, for example, two cases were decided that prevented
private property owners from deciding who could enter their
premises. The Heart of Atlanta Motel and a Birmingham,
Alabama, restaurant called Ollie's Barbecue were told that
they could no longer refuse to serve blacks. The fact that
these businesses were on private property was not seen as an
obstacle to state determination of who would be allowed to
associate there.
1988 saw a similar intrusion into freedom of association
when the Supreme Court decided that certain private clubs in
New York City had to abide by a city law which required them
to admit women.
Now, all these decisions were greeted favorably by the
media. I must confess that I myself find it difficult to
suppress my elation that a bunch of racists and sexists were
told to shape up by the Supreme Court. However, we must not
allow our personal evaluations of other citizens' beliefs to
obscure what is really going on in these cases. Even the Nazi
has his freedom of speech protected by the First Amendment,
even the Flat Earth Society is allowed to associate and
promote its ideas. Freedom of thought necessarily entails the
freedom to be wrong. That is why the above court decisions
can be seen as having fundamentally negative consequences for
human freedom, especially that of associating with other human
beings.
Why is freedom of association so important? Tocqueville
championed this right by arguing that its roots are firmly
planted in the ideal of autonomy: "The most natural privilege
of man, next to the right of acting for himself, is that of
combining his exertions with those of his fellow creatures and
of acting in common with them. The right of association
therefore appears to me almost as inalienable in its nature as
the right of personal liberty. No legislator can attack it
without impairing the foundations of society."
Thus the right can be seen as central to individual
autonomy, or the power of a person to control his own actions.
One should be allowed to associate with whomever he wants,
just as one should be allowed to think whatever thoughts he
wants. Freedom of association is just as important to
individual autonomy as freedom of speech.
Indeed, freedom of association is an integral part of
those liberties more commonly thought to reside in the First
Amendment. Can we truly have freedom of speech if the
audience is determined by the law rather than by private
choices? Can we exercise freedom of the press if the
readership is regulated by the state? Can we have freedom of
religion if congregations are determined by government? The
freedom of association sets the stage for all these other
freedoms to be exercised.
Another way to think about freedom of association is
under the rubric of contract law. Membership in a private
club can be seen as a form of contract between the prospective
member and the current members. This is how the right
traditionally has been enunciated in English common law. Just
as the state cannot violate freedom of contract between
competent adults, so should it be prevented from interfering
with the freedom to form contractual associations. Also, the
state never should have the power to compel parties to
contract with each other, but it certainly did in 1988 when
New York's Century Club was forced to admit women members.
Charles Murray spells out another benefit of
associational liberty in his book, In Pursuit. Associations,
he writes, are an integral factor in one's pursuit of genuine
happiness. This is especially true of church groups, social
groups, and neighborhood associations. Murray argues that
free human interaction as a process is much more important to
people than any results-oriented form of welfarism. Freedom
of association thus can be seen as a bulwark of the private
sphere, through which most people derive their happiness and
self-worth.
The key issue in legal battles over freedom of
association is the definition of "public" versus "private"
interaction. It is obvious that arbitrary criteria like race
or gender shouldn't be utilized in governmental decision-
making, since laws should apply equally to all. However, it
is difficult to see why private decisions should be subject to
the same rules. Government has neither the ability nor the
right to dictate how people should conduct their personal
lives, providing that private interactions are conducted by
mutual assent among the parties involved.
Access to the benefits of association with certain
persons should not be an "overriding state interest" that
justifies abrogation of associational liberty. Blacks who
want some good barbecue are free to go to a shop that has a
more sensible admissions policy than that practiced by Ollie's
Barbecue. There certainly were such places, even 25 years
ago. Women who want membership in New York clubs should find
ones that don't shoot themselves in the foot by prohibiting
female membership. More fundamentally, though, the state
should not be in the business of providing "access to
commercial opportunities" in the form of business deals with
certain club members. The government might just as well tell
us whom to invite to our homes for dinner, or with whom to
play golf, since many business deals are conducted in these
settings as well.
Also remember that if the sexist club members don't want
women there, it is highly unlikely that they will seek out the
new women members to make them business propositions!
Coercion is hardly ever the answer when one is faced with
people who make the wrong decisions. This is especially the
case when associational freedom is at stake. The correct path
is not to seek state intervention into the makeup of private
associations, it is persuasion, or competition through the
formation of alternative associations. Assuming that the
"bad" organization doesn't enjoy monopoly status (like a bar
association), the marketplace eventually will lead to the
adoption of more legitimate admissions practices, since the
"old boy network" clubs will be missing out on the increased
vitality and productivity brought to other clubs by their
female or minority members. Just as it would be bad business
these days to restrict one's barbecue consumers to whites
only, it is equally bad business to restrict one's business
dealings to members of an all-male club.
The world will not end just because the Rotary Club and
Century Club have to admit women members. In fact, the clubs
themselves may be better off in the long run. However, the
principle of free human interaction itself is ending, if
government decides it can invade the private sphere of its
citizens with impunity. Freedom of association is an integral
part of our Constitutional liberty, as well as a primary means
of pursuing happiness. But in the final analysis, it is also
an important weapon in the continual struggle against "Big
Brother" statism. A society not free to associate is not free
to do much else, either.
David Hood is a law student at the University of North
Carolina, where he publishes The Carolina Critic, a student
journal of opinion.
|