I. The Way It Once Was: Encouraging Laudable Associations

This essay is about some American conceptions of freedom of association, and it is helpful, in order to determine how we ought to think about that freedom of association, to begin by exploring the purposes for which Americans have sought to associate. This requires considering shared conceptions of American society, if not, indeed, the most basic questions about humanity, morality, religion, philosophy, and politics in their historical American context. Keeping things very simple, let's begin by asking, “What was the original understanding of the purpose of American society?” A good historical starting point is the Declaration of Independence, which set out the reasons Americans sought to break with their mother country. The Declaration notes that governments exist in order to preserve and protect “inalienable rights” to life, liberty, and the pursuit of happiness, and it tracks John Locke's similar assertion (in his Second Treatise) of government's job as the protector of life, liberty, and property.Footnote ¹ This suggests the enduring importance of individual rights in American society, since the preservation of these rights is viewed as the job of the American governments, but while the Declaration of Independence makes clear the importance of individual rights to Americans, the Declaration itself tells us little about what we are supposed to do with these individual rights, and indeed, how, precisely, they are supposed to aid us in interacting with each other—or, to put the problem in more general terms, why these rights (and possibly others) are necessary for human flourishing.

Not so very long ago, it used to be said, by undergraduates at one Connecticut institution of higher learning, that one ought to be “for God, for Country, and for Yale.”Footnote ² If we can generalize, perhaps this means that there was an ethos, pervasive and dominant until very recently, that it was the divinely sanctioned task of humans to glorify God, to serve their country, and to demonstrate loyalty to certain of what we now call intermediate institutions,Footnote ³ such as universities, churches, fraternal organizations, unions, trade organizations, and families. Put even more simply, in America the purpose of human life on earth, guided by Christian morals and a belief in a God who rewarded the good and punished the wicked,Footnote ⁴ was to ensure one's place in the afterlife through altruistic service to one's fellows, one's country, and one's God. Such altruism was, of course, impossible unless one were in a position to associate with other members in society; and, thus, freedom of association, as a means to religiously inspired altruistic service to others, could be conceived as indispensable to human flourishing.

Societally coerced association, in most quarters, was believed to be anathema, in no small part because Christian concepts of salvation, at least the dominant ones in eighteenth- and nineteenth-century America, required the exercise of free choice. This explains the American penchant for freedom to seek God's grace in one's own fashion—in short, for freedom of religion. Two contemporary expressions limn that freedom of religion and are worth quoting here. These are the First Amendment to the United States Constitution (1791) and the 1786 Virginia Statute for Religious Freedom.

The First Amendment was passed because of a fear that the newly established federal government might unduly interfere with Americans' exercise of important social activities,Footnote ⁵ and provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”Footnote ⁶

The 1786 Virginia Statute for Religious Freedom, while not widely known today, was one of the most important documents of the early republic, and was apparently one of the three proudest accomplishments of Thomas Jefferson, its principal draftsman.Footnote ⁷ It is worth lingering with the statute for a while for the sense that it gives us, similar to that provided by the First Amendment to the U.S. Constitution, of the primary importance of religion in general and religious freedom in particular. Thus, in the first section of the statute, Jefferson sets out the place of religious freedom in a sensible society, and his basic beliefs regarding what that freedom is to accomplish:

Given, then, Jefferson's belief that if matters of religion were to be able to be freely debated, religious truth (the existence of which was assumed) would be able to prevail, the second section of the statute provided that no Virginian

In quite an extraordinary underscoring of the importance of these first two sections of the statute, Jefferson added a third, designed for the ages. Referring to what everyone then understood to be the plenary power of the Virginia legislature (since no Virginia Constitution restricting it on religious matters then existed), Jefferson concluded:

The meaning of this rather remarkable statement—the linkage of religious freedom with the “natural rights of mankind”—made it as clear as possible that this was fundamental stuff, and of the essence of American life. Still, it is worth understanding, as Jefferson suggests, that freedom of religion and freedom of association had to allow for improper choices as well as proper ones, if the responsibility for one's immortal soul rested, after all, on one's own shoulders. Religious choices, for Jefferson, were not something the state should coerce, because this was contrary to the plan of God himself.

Still, among most of the Framers of the U.S. Constitution, there appears to have been a shared belief that it was the duty of the state not only to provide freedom of religion and freedom of association, but also to provide support for the encouragement of religion, and probably specifically for the Protestant Christian variety. Even though Jefferson is generally regarded as a firm proponent of the separation of church and state, the most recent scholarship on Jefferson suggests that he, too, was, to a certain extent, a proponent of using the power of the state to support religion:

Moreover, there were at the time of the American Revolution at least three established state churches: the Church of England (Anglican) in Virginia, and the Congregational Church in Connecticut and Massachusetts. And one can find, in the courts, explicit examples of judges seeking, in an appropriate Christian manner, the salvation of the souls of Christian defendants condemned to the gallows. The best example I have found was an admonition from the bench to John Fries, convicted of treason for participating in an armed rebellion in 1799 against federal tax collectors in eastern Pennsylvania. Fries and his co-participants in what came to be called the “Fries Rebellion” or the “Hot Water War” (because some of the Pennsylvanians had sought to douse the tax collectors with scalding water) had virtually shut down the federal government in general and the collection of taxes in particular in that part of the state. As the ringleaders, Fries and a few of his fellows were convicted by a Philadelphia jury presided over by Samuel Chase, an associate justice of the United States Supreme Court. As Fries stood condemned to hang, Chase stated to Fries:

In the leading case proclaiming the United States “a religious people,” the United States Supreme Court observed in Holy Trinity Church v. U.S. (1892) that “From the discovery of this continent to the present hour, there is a single voice making this affirmation.”Footnote ¹¹ When Queen Elizabeth authorized Sir Walter Raleigh to enact statutes for the Virginia colony, it was provided that “they be not against the true Christian faith nowe professed in the Church of England,” and King James I's charter, granted to Virginia in 1606, provided that Virginia “may, by the Providence of Almighty God, hereafter tend to the Glory of His Divine Majesty, in propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God.”Footnote ¹² Similar language was to be found in other charters granted to Virginia and other of the American colonies. Thus, for example, the Mayflower Compact of 1620 declared:

Similarly, the “fundamental orders of Connecticut” (1638–1639), in effect a constitution for the colony's government, observed:

To the same effect, the charter of privileges granted by William Penn to the province of Pennsylvania in 1701 provided that “Because no People can be truly happy, though under the greatest Enjoyment of Civil Liberties, if abridged of the Freedom of their Consciences, as to their Religious Profession and Worship; And Almighty God being the only Lord of Conscience, Father of Lights and Spirits; and the Author as well as Object of all divine Knowledge, Faith, and Worship,”Footnote ¹⁵ freedom of religion was secured.

Coming closer to the present, the Supreme Court in Holy Trinity observed: “Every constitution of every one of the [then] 44 states [existing in 1892] contains language which, either directly or by clear implication, recognizes a profound reverence for religion, and an assumption that its influence in all human affairs is essential to the well-being of the community.”Footnote ¹⁶ Typical among many such constitutional provisions were those from articles 2 and 3 of part 1 of the constitution of Massachusetts (1780):

Referring to these and other provisions, the Court states: “These are not individual sayings, declarations of private persons. They are organic utterances. They speak the voice of the entire people.”Footnote ¹⁸

To substantiate this assertion, that the United States was a Christian nation, the U.S. Supreme Court turned to state court precedent in order to observe that

Further indicating the pervasive and favored status of religion in American life, the Holy Trinity Court noted:

“These and many other matters which might be noticed,” concluded the Supreme Court, “add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.”Footnote ²¹

Adding all of this up suggests that, in the early years of our republic, freedom of association carried with it an understanding that it was the job of the government to further associations for laudable purposes, and to discourage or condemn those associations whose purposes were not so desirable. Hence the early notion borrowed from the English common law, for example, that an association of journeymen bootmakers formed to raise their wages and to further closed shops ought to be viewed as an unlawful conspiracy rather than a laudable association.Footnote ²² By 1842, this particular type of intermediate association (a prototypical labor union) was gaining some legal support, but only because of a recognition that workers might associate for benevolent purposes (such as furthering temperance), rather than malevolent ones (such as driving away scabs or extorting undue sums from employers).Footnote ²³ In the past, then, it was governmental policy to promote laudable associations, and particularly religious and moral ones.

II. The Way It Is Now: Furthering Radical Individualism

Nowadays, however, when one can get oneself pilloried if one seeks to argue that ours is a “Christian country,”Footnote ²⁴ things have changed; and, not surprisingly, the concept of freedom of association has most likely changed as well. Instead of serving God, Country, and Yale, it looks as if the purpose of freedom of association, insofar as it is to further the more general modern purposes of American society, is to further what we used to call “self-actualization,” or perhaps, in its current form, the encouragement of self-gratification. We are now, as a culture, at least among the chattering classes, more committed to radical individualism than we are to altruism. For me, at least, this is summed up in the famous “mystery passage” (or, as it was called by Justice Antonin Scalia, “the sweet mystery of life passage”)Footnote ²⁵ written by Justice Anthony KennedyFootnote ²⁶ and first announced in the important plurality opinion in the United States Supreme Court case of Planned Parenthood v. Casey (1992):

There is more than a little obscurity in the meaning of this passage, but whatever it means, it seems to suggest that the government should get itself out of the business of morals or religion, and leave these things to individuals. As Notre Dame University law professor Gerard Bradley, one of the most sensitive critics of the passage, has observed, “the Justices wish to be seen as affirming the right of each person to make up his own moral universe, but to affirm it without making any moral commitments of their own. As if taking the view that everybody can, or should, or should be thought to, inhabit his own world were all ‘neutral’ propositions.”Footnote ²⁸

There are, of course, grave problems with the mystery passage, and, in particular, with its assumption that one can “define one's own concept of existence, of the universe, and of the mystery of human life,” since all of these probably can only be worked out through the aid of others, living or dead; these are things that come from one's fellows or one's culture, not from within oneself. As Bradley puts it, “Making up one's world is existentially impossible, no more empirically available than a unicorn.” “Of course,” he adds, thinking perhaps of Justices Kennedy, Souter, and O'Connor, the named authors of the plurality opinion in which the mystery passage first appeared, “some people believe in unicorns.” To similar effect, John Leo writes that if the passage were “rigorously applied,” it “would justify suicide clinics, prostitution, bestiality, polygamy, and maybe interspecies marriage. The passage elevates individual desire over all known law on any issue any court might deem ‘central to personal dignity or autonomy.’ It's also a charter for resolving all issues of the culture war by removing them from normal democratic politics and handing victory to the liberationist side of the battle.”Footnote ²⁹

With the “mystery passage,” then, we have the antithesis of altruism, and the apotheosis of individualism. By this I mean that the “mystery passage” seems to be all about individual self-gratification, but our older notions of altruism, religion, and association seem to be about meeting the needs of others, about meeting the responsibilities of our social duties rather than fulfilling our individual desires. This simplistic analysis—an American past of altruism and an American present of individualism—undoubtedly fails to capture a much subtler reality. As Duncan Kennedy suggested in his seminal work on contract law, our law is simultaneously shot through with both individualism and altruism;Footnote ³⁰ but surely it does not go too far to suggest that, at any given time, one strand might dominate over the other—and then, perhaps later, that ascendance might be reversed.

III. Two Models of Freedom of Association

For the purposes of trying to understand some of the inconsistencies in freedom of association doctrine—and, in particular, to try to understand why courts have recently upheld some claims to freedom of association and rejected others—it might help to posit the existence of different cultural conceptions and see where this leads us in understanding the law. I am actually going to contrast only two conceptions of freedom of association, one that I will call the “traditional” model and another that I will designate as the “modern” model. As an example of my “traditional” model, I will present the conception articulated by Herbert Wechsler in his famous article on “neutral principles” in constitutional law. As my “modern” example, I will present the conception articulated by Andrew Koppelman, which he has sketched in two provocative law review articles. I will supplement Koppelman's model of freedom of association with a take on constitutional jurisprudence provided by Cass Sunstein, in his recent blast at conservative judges, Radicals in Robes (2005).Footnote ³¹ I am going to argue that these two conceptions, Wechsler's on the one hand and Koppelman's and Sunstein's on the other, reflect different cultural moments or different strains in American society, and that one way of explaining American constitutional law's confusion over the issue of freedom of association is to suggest that constitutional law, in seeking continuity in the doctrinal treatment of freedom of association, has failed to acknowledge a fundamental cultural discontinuity.

While the fit may not be exact, I argue here that the Framers' and Wechsler's conceptions of freedom of association share at least some attributes, and that this “traditional” conception has been, for at least the last few decades, engaged in a clash with a different view, the view articulated by Koppelman and Sunstein. I will seek to show that Supreme Court decisions in this and related areas come out differently in different cases because various justices subscribe to either the traditional view or the newer view. To put this at its simplest, my effort here is simply to compare and contrast some older, traditional ideas about freedom of association with some newer, more individualistic ones.

IV. Herbert Wechsler on Freedom of Association

Let us begin, then, with Wechsler. Wechsler's article, “Toward Neutral Principles of Constitutional Law” (1959),Footnote ³² one of the most frequently cited in the entire law review canon,Footnote ³³ was an attack on the Warren Court for what Wechsler regarded as its unseemly failure (in cases regarding, in particular, race in American life) to articulate constitutional principles that were something other than purely result-oriented. Wechsler labeled his sought-after principles as “neutral” (meaning not simply determined by the preferred outcome) and described them as applicable not just to the case at hand, but to future cases involving similar issues (he labeled principles with this quality as “general”). Wechsler's notion (in one way, at least, a very traditional one) was that a court which was merely “result-oriented,” and which produced results that could not serve as precedents for future cases, was not engaging in the appropriate behavior we expect of courts.Footnote ³⁴

The rule of law, for Wechsler, demanded activities different from the essentially legislative efforts that he saw the Warren Court engaged in. Given that we are all now “legal realists,” and that we all now pretty much accept the insights of the precursor of legal realism, Oliver Wendell Holmes, Jr., and his latter-day acolytes such as Jerome FrankFootnote ³⁵ and Karl Llewellyn,Footnote ³⁶ who held that the judicial task is inevitably legislative in nature, it is not surprising that Wechsler's search for “neutral” and “general” principles has been labeled as naïve and possibly reactionary.Footnote ³⁷ Still, unless we are prepared simply to throw in our lot with the political scientists, to give up any pretense that the rule of law is a meaningful concept, and to cashier the notion that adjudication is different from legislation, there is much to admire in Wechsler's enterprise.

Wechsler was not only seeking to criticize the Warren Court, he was also trying to find a method of constitutional hermeneutics that would be different from the orthodoxy suggested by his predecessor at the Oliver Wendell Holmes, Jr. lecture podium at Harvard, Judge Learned Hand.Footnote ³⁸ Hand had also lambasted the Warren Court for its failure to follow precedent and for its blatant result-orientation. Hand had further maintained that the Warren Court's error was in failing to interpret the Constitution according to the understanding of the Constitution's text when it was originally ratified. This method, “originalism,” is still honored, even in the breach, and is best exemplified today by Justices Antonin Scalia, and Clarence Thomas.Footnote ³⁹ Wechsler believed that the Constitution was drafted to embody certain values, and that the application of these values changed over time, so that it was the task of the Court to apply these values to changed social circumstances. For Wechsler, then, we had a “living Constitution,”Footnote ⁴⁰ one whose application would change over time, though Wechsler did not believe that the fact that the specific application of constitutional values or “principles” might change meant that the judicial task was a legislative one. Instead, Wechsler thought that for any given constitutional question, its neutral and general resolution could be determined simply by objective reference to the preexisting principles already embedded in the document.

Unfortunately, Wechsler himself proved unable to reconcile these purported constitutional principles in order to resolve the issues concerning race that confronted the Warren Court and its predecessors. Wechsler conceded that Brown v. Board of Education (1954),Footnote ⁴¹ which ruled that racially segregated public schools were unconstitutional, Smith v. Allwright (1944),Footnote ⁴² which held that a private “whites-only” political party primary election violated the Constitution, and Shelley v. Kraemer (1948),Footnote ⁴³ which held that racially restrictive covenants were impermissible, were laudable insofar as these practices did violate the great constitutional principle embedded in the Fourteenth Amendment (requiring that no state deny any citizen “the equal protection of the laws”). While Wechsler was not completely clear on this, we could also label this principle the principle of a “color-blind” Constitution. But even if the principle of “color-blindness” was in the Constitution, Wechsler maintained that the Warren Court failed in its task of “neutrality” because it failed to take account of a competing constitutional principle, that of freedom of association. Wechsler appeared to suggest that he, personally, favored the principle of a color-blind Constitution over the principle of freedom of association, but he could not defend his personal preference as a matter of constitutional law, because he was able to offer no constitutional standard for preferring one competing constitutional principle over another.

Precisely what Wechsler understood by freedom of association was something he never defined, but, curiously, it appears to be similar to (if not the same as) the earliest view of freedom of association that I have set forth above. Thus, for Wechsler, freedom of association implied the freedom to discriminate,Footnote ⁴⁴ and, in this context, the freedom to choose not to associate with persons of a race different from one's own. This appeared most clearly in Wechsler's criticism of the Shelley v. Kraemer decision, which had held that the use of state courts to enforce racially restrictive covenants was “state action” which violated the Fourteenth Amendment's prohibition against any state denying any of its citizens “the equal protection of the laws.” Nonetheless, Wechsler explained that one ought to understand the Fourteenth Amendment's prohibition against “state action” to imply that individuals were free to engage in the very discrimination prohibited to the state, so that if individuals wished to discriminate on the basis of race, the Fourteenth Amendment presumably secured this “right” for them. And if they had this right, he continued, this meant that the state was required to enforce the right in its courts.Footnote ⁴⁵ Racially restrictive covenants, then, should have been enforceable in courts because enforcement in courts is the traditional means of securing rights. The courts should have been required to enforce the individual right to discriminate. Such action ought not properly to be viewed as state action, but ought to be understood as merely permissible acts of individuals, individuals who wished to exercise their constitutional rights to freedom of association, or, more precisely, freedom from association with those with whom they did not choose to associate.

For Wechsler, this freedom of association, or freedom from forced association, extended also to the formation of racially restricted political parties,Footnote ⁴⁶ and, it would seem, to racially segregated schools (at least where the “separate but equal” mandate of Plessy v. Ferguson was actually followed). Thus, for Wechsler, freedom of association, simply stated, included the freedom from purportedly odious personal contact with persons of different races. This conception of freedom of association as a license for individuals racially to discriminate is probably unpalatable to most of us, and Wechsler's critics, such as Judge J. Skelly Wright, simply dismissed Wechsler's purported manufacturing of a constitutionally protected right to discriminate based on race.Footnote ⁴⁷ For Wright, the Fourteenth Amendment's equal-protection value of “color-blindness,” or at least the value of remaining free from state-imposed racially discriminatory actions, clearly trumped any purported freedom of association. Wright did not exactly completely dismiss freedom of association, but he had no difficulty in deciding that the purportedly constitutionally mandated freedom from racial discrimination was more important. Wright suggested that it was the job of Supreme Court justices (and lower-court judges) to create a hierarchy of constitutional values and then apply the appropriately ordered principles to resolve particular cases, but other than suggesting that this had been the task in which the Warren Court had been engaged (and the heavens didn't fall), and that one could establish such an ordering pursuant to a jurisprudence of “goodness,” Wright never explained how such a hierarchy of values could be derived.

Setting aside these probably insoluble questions of constitutional interpretation, what is most interesting for our purposes is Wechsler's conception of freedom of association as freedom to discriminate.Footnote ⁴⁸ Discrimination on the basis of race could conceivably be driven by observations about actual physical, intellectual, or cultural differences between ethnic or racial groups, but there is certainly a strong possibility that it is undertaken as a result of personal prejudice, or idiosyncratic personal preference, or maybe even utter irrationality or hatred. This was perhaps why Judge Wright, who believed passionately in the equality of the races, found it so easy to condemn Wechsler's views, but perhaps Wechsler was, nevertheless, on to something. As the Greeks understood, as Sigmund Freud perceived, and as anyone who has ever been in love knows, humans are, at bottom, not particularly rational creatures. They are, one suspects, as often guided by their emotions as they are by their intellect. Religion, still a great driving force in American society, is not, despite the best efforts of religious leaders, philosophers, and writers for thousands of years, something that is easily subject to rational analysis; instead, it draws its strength from the irrational, from the emotions, whether they are emotions of love or fear. It is undoubtedly significant that alongside Wechsler's defense of racially discriminatory political parties was his defense of political parties organized by religion.

Wechsler did not put it in so many words, but perhaps, given his express advocacy of the legitimacy of political parties based on religion,Footnote ⁴⁹ we might be able to impute to Wechsler an understanding that freedom of association was a value secured by the First Amendment's “free exercise” of religion clause as well as the “freedom of speech” clause, and, indeed, that it was a value designed, at least in part, to further the flourishing of religion. I think it does not go too far to suggest, then, that Wechsler might have understood freedom of association as a means of meeting human needs that were more emotional (perhaps even irrational) than intellectual.Footnote ⁵⁰ In any event, I think Wechsler's conception of freedom of association, insofar as it may have acknowledged special protection for religion, was of a piece with the traditional common law view, understood by the Framers, that religion was an indispensable prop for civilized society, and that a religiously-discriminatory concept of freedom of association furthered that goal. Religious discrimination in the exercise of freedom of association might be perceived as being just as emotional or as irrational as racial discrimination, but it was the protection of that irrationality (for lack of a better word) as a basic human quality that enabled freedom of association to do its job in allowing us freely to form intermediate associations that would be meaningful to us, and that, presumably, would altruistically benefit at least some of our fellows.

V. Dale and Jaycees as Adhering to Different Forms of Freedom of Association

Wechsler's concept of freedom of association—a freedom to discriminate (even irrationally) against those one does not wish to have as co-members of one's intermediate associations—appears to be the same concept involved in Boy Scouts of America v. Dale (2000),Footnote ⁵¹ the most recent important freedom of association case.Footnote ⁵² In that case, the right of the Boy Scouts to forbid an openly gay scout leader was upheld by the United States Supreme Court. This policy of the Boy Scouts seems to be tremendously unpopular, and has resulted in the Scouts being barred from participating in some forms of fund-raising, such as many local United Way appeals.Footnote ⁵³ The Supreme Court's decision in Dale has also come in for some blistering scholarly criticism, apparently on the grounds that important national associations should simply not be permitted to discriminate in what is now generally regarded as a politically incorrect manner. Among the intelligentsia, it would seem, just as it was true for Wright's critique of Wechsler,Footnote ⁵⁴ there is a hierarchy of constitutional values, and freedom of association (at least to the extent that it includes a freedom from unwanted association) simply ranks lower than freedom from discrimination, at least for racial discrimination, sexual discrimination, or discrimination against particular sexual orientations.

Something like this feeling also seems to have motivated the Supreme Court in rendering its decision in Roberts v. United States Jaycees (1984), where it ruled that the Jaycees could not discriminate on the basis of sex.Footnote ⁵⁵ Given the Court's holding in the Jaycees case, it is surprising that the Court proceeded to allow discrimination against gays in Dale, but perhaps the Court is here reflecting American society's somewhat deeper-seated traditional aversion to homosexual behavior than to equality for women. The usual reason supporting anti-gay discrimination is purported religious hostility, and it is interesting to speculate as to whether, if the Jaycees case had come up a hundred years ago, it would not have gone the other way based on the then-popular conception (rooted in biblical teachings) that women were meant for a subordinate role to men. Had it come up at the time of Bradwell v. Illinois (1873),Footnote ⁵⁶ of course, Justice Joseph Bradley's observation in his concurring opinion that it was the “law of the Creator” that the “paramount destiny” of women was to “fulfill the noble and benign offices of wife and mother,”Footnote ⁵⁷ would have carried the day, and just as Myra Bradwell was not permitted to practice law in Illinois, so women would not have been permitted to join the Jaycees.

VI. Cass Sunstein, Arbitrariness, and Edmund Burke

How, then, do we distinguish between different forms of religiously motivated discrimination, supporting some forms on the basis of “freedom of association,” and not permitting others, even if “freedom of association” is invoked? Are there clear constitutional doctrinal guidelines? The intractability of the effort to draw such clear guidelines might well be the central problem in modern constitutional theory. This difficulty has led some, perhaps most notably University of Chicago law professor Cass Sunstein, to opt out of high theory altogether. Thus, Sunstein has embraced what seems to be a shamelessly pragmatic case-by-case approach, taking as his ideal the method of constitutional exegesis practiced by Justices Anthony Kennedy and Sandra Day O'Connor, who have rather notoriously been proceeding on a case-by-case basis. O'Connor was the most egregious in this regard, with her jurisprudence differing little in kind from her actions taken earlier as a state legislator. In other words, Justice O'Connor's constitutional jurisprudence was not all about following precedent, it was all about making prudential, or, more precisely, legislative judgments.Footnote ⁵⁸ Sunstein, who believes that in advocating this sort of jurisprudence he is emulating the great conservative Edmund Burke (who purportedly eschewed abstract theories in favor of a prudential approach to political problems), appears to be certain about what the substance of such a prudential approach would be.

Sunstein has made it clear, for example, that he thinks no sensible person could dispute the correctness of certain Supreme Court decisions that he favors. He believes that it would endanger “democracy and our rights,” for example, if the Court were to abolish the “right to privacy” first discovered in penumbras and emanations of the Constitution in the 1965 Griswold Footnote ⁵⁹ case (which prevented states from prohibiting the sale of contraceptives to married adults) and then extended in 1973 in Roe v. Wade Footnote ⁶⁰ to include a constitutional right to terminate pregnancies. Similarly, Sunstein believes that the New Deal Court's expansive readings of the federal government's power to regulate commerce were correct. He fears that a conservative Supreme Court, seeking perhaps to recapture the “Constitution in Exile,”Footnote ⁶¹ would be wrong narrowly to construe the commerce clause and thus endanger the federal Clean Air Act, the Federal Communications Commission and the Occupational Safety and Health Administration, all of which Sunstein seems to regard as laudable purveyors of sensible public policy. Sunstein favors a broad interpretation of the equal protection clause of the Fourteenth Amendment, which he believes would not permit the federal government to use racial profiling in the war on terror, or permit the states to discriminate on the basis of sex (say, to operate single-sex military academies) or race (say, to set up “separate but equal” racially discriminatory academies).

Sunstein, like virtually every legal academic practicing today, and like the vast majority of recent members of the United States Supreme Court, believes that the First Amendment ought to be incorporated into the Fourteenth, and thus that the Court has been correct to bar mandatory prayer and Bible reading in the public schools; and he condemns conservatives, such as Justice Thomas, who understand the First Amendment to have been a federalism measure, so that the states should still be able to decide for themselves how properly to encourage religion, if they so choose.Footnote ⁶² Sunstein has a limited view of executive power, and fears that a conservative Supreme Court could give the president the power without warrants or other judicial supervision to detain suspected terrorists or those who are alleged to have assisted them. Sunstein even goes so far as to suggest that civil rights laws might be found unconstitutional by conservative justices holding a narrow conception of the interstate commerce power, that gun control laws might all be found unconstitutional because of conservatives' understanding of the Second Amendment, and that all campaign finance reform legislation might be thrown out because of conservatives' view that such legislation prevents political speech protected by the First Amendment. The civil rights laws, the gun control laws, and the campaign finance measures are all legislation that Sunstein favors, and he implicitly suggests that no sensible person ought to disagree. Sunstein also believes in affirmative action and condemns the possibility that conservative justices might reject it because of their belief in a color-blind Constitution. Finally, Sunstein suggests that because of conservatives' strong belief in the primacy of private property rights, those rights might be expanded to compensate for more regulatory takings, forbidding the government from carrying out policies, such as protection of the environment, that Sunstein favors.Footnote ⁶³

The burden of Sunstein's argument in his polemical book Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (2005) is that conservative justices such as Scalia and Thomas are as far out of the mainstream as religious fundamentalists such as Jerry Falwell and Osama Bin Laden, and that Falwell's and Bin Laden's superstitious reverence for a sacred text is a good analogy for Scalia's and Thomas's penchant for interpreting the Constitution according to its original understanding. Just as Falwell and Bin Laden's fundamentalism is a threat to America, so, Sunstein claims, are the conservative judges Sunstein labels as “fundamentalists.”

The “fundamentalist,” “extreme right-wing,” or “conservative” judges whom Sunstein believes are combining in a project to take away rights from Americans and destroy democracy would not, of course, view themselves as engaged in any such efforts. Indeed, their goal (one I tend to share) is simply to reverse the undemocratically-imposed rulings of the Supreme Court on issues such as race, religion, abortion, and federalism and to restore the right to settle these issues of public policy to the American people, acting through their local governments. Sunstein's name-calling here is of a piece with modern American politics, where one labels those one likes “moderates,” and one's foes “extremists.” This isn't jurisprudence, really; it's mud-slinging.Footnote ⁶⁴

It is not at all clear that most Americans would condemn the same jurisprudential results that Sunstein does, and his pragmatism may be designed to preserve the achievements of the late-twentieth-century Supreme Court which liberals favor and which are anathema to conservatives. Again, of course, this is not constitutional jurisprudence; it is the securing of politically favored results disguised as what Sunstein calls a theory of “constitutional minimalism.” It masks a series of debatable political choices, and boldly asserts that to change these undemocratically-imposed choices would be to threaten “democracy and our rights.” The point that is relevant to us, of course, is that Sunstein offers no principled basis to defend the constitutional results he favors, and if a scholar who is regarded as one of the very best in his field sees no need to do that, then perhaps to attempt to fashion a theoretically coherent approach to freedom of association is to engage in folly.

Sunstein, by the way, may believe that he is being a good Burkean, but Burke was a great believer in the wisdom of the collective people, in tradition, in religion, in morals, and in the rule of law; and insofar as the Supreme Court holdings that Sunstein embraces are arbitrary innovations and rejections of our traditions, it is difficult to believe that Burke would embrace Sunstein as a philosophical colleague. Are there, then, approaches to freedom of association that amount to more than embracing the results one favors? Are there any approaches that really do reflect our traditions, and that one could actually endorse while being a true Burkean?

VII. Andrew Koppelman on Freedom of Association

Let us consider the approach of Andrew Koppelman. Koppelman has written two provocative pieces critical of the United States Supreme Court's decision in Boy Scouts of America v. Dale (2000),Footnote ⁶⁵ the case that I have hinted looks back toward the traditional American conception of freedom of association. In Dale, the Boy Scouts sought to expel an assistant scoutmaster, James Dale, on the grounds that he was gay and a gay-rights activist, and that allowing such a gay young man in the Scouts would send a message of approval of his lifestyle that would purportedly be inconsistent, inter alia, with “the values embodied in the Scout Oath and Law, particularly those represented by the requirement that Scouts be ‘morally straight’ and ‘clean.’ ”Footnote ⁶⁶ Dale then sought the aid of the New Jersey courts to reinstate him in the Scouts on the grounds that the Scouts were a “public accommodation” and New Jersey law forbade discrimination on the basis of sexual orientation.

Dale won with that argument in the New Jersey Supreme Court, but the United States Supreme Court reversed the New Jersey decision and held that the application of the state's “public accommodation” antidiscrimination law to the Scouts violated the Scouts' freedom of association rights. In Koppelman's simply stated view, commendably pulling no punches, the United States Supreme Court's opinion in Dale was “disastrous”Footnote ⁶⁷ and “sheer lunacy.”Footnote ⁶⁸ This was because, for Koppelman, the Supreme Court in Dale was either saying, “All antidiscrimination laws are unconstitutional in all their applications,” or “Citizens are allowed to disobey laws whenever obedience would be perceived as endorsing some message,” or both.Footnote ⁶⁹ Koppelman states that “[b]oth of these propositions are absurd,” so we can add “absurd” to the catalogue of epithets that Koppelman bestows on the Court.

One gets the strong feeling that Koppelman doesn't like the Dale decision. He has many reasons to criticize the Court and its idea that freedom of association forbids compelled speech of the kind that would purportedly be transmitted if the Boy Scouts allowed gay members, but what I think is most interesting about Koppelman's ire is that he is probably illustrating the same kind of hierarchical ordering of constitutional values as did Skelly Wright, and almost the same sort of intuitive sense of what political choices are correct as Cass Sunstein. I do not mean to belittle Koppelman's considerable abilities as a doctrinal analyst. I think he is right, for example, in his implicit suggestion that if Dale is right then Jaycees is wrong, because the Jaycees probably had an argument to make that admitting a woman sends a message they did not wish to send—although it is possible that one could say, as Justice O'Connor might have believed (and Koppelman acknowledges), that Jaycees still stands even if Dale is correct, because the Jaycees were a commercial organization not primarily concerned with sending expressive messages, while the Boy Scouts are a noncommercial organization more openly committed “to develop[ing] good morals, reverence, patriotism, and a desire for self-improvement.”Footnote ⁷⁰

For Koppelman, what is really galling about Dale, it would seem, is its embracing of the “pariah status of gays,”Footnote ⁷¹ its apparent acquiescence in the notion that gay people lack “emotional stability,” its implicit suggestion that their “indulgence in acts of sex perversion weakens the moral fiber of an individual to a degree that he is not suitable for a position of responsibility,” and its implicit acceptance of the notion that gay people are prone to “entice normal individuals to engage in perverted practices.”Footnote ⁷² By allowing this sort of prejudice, this sort of irrational thinking, Koppelman appears to be saying, the Dale Court's decision will result in a situation where “[p]rejudices will be insulated from the law precisely to the extent that they are widespread.”Footnote ⁷³ Koppelman acknowledges the widespread nature of prejudices against gay people, and argues that the “compelled speech doctrine” as understood by the Court in Dale “unjustifiably privileges the status quo.”Footnote ⁷⁴ Koppelman appears to argue that, instead of favoring the values of pluralism and the autonomy of diverse groups, the Dale Court should have recognized that “it doesn't follow that these values should always take priority over the effort to break up entrenched patterns of discrimination and include, in socially valued activities, people who have traditionally been outcasts.”Footnote ⁷⁵

Koppelman concludes that “[i]t was a mistake to grant certiorari in Dale,” and that “[i]f the courts have nothing useful to say, then they ought to shut up.”Footnote ⁷⁶ He suggests that the Supreme Court was making an “implicit judgment that the Boy Scouts are especially worthy of judicial protection, or that gay people are especially unworthy of legislative protection, or both.”Footnote ⁷⁷ For Koppelman, then, freedom of association, or the Court's version of it in Dale, is less important than ending irrational prejudices, old stereotypes, and, in short, discrimination against homosexuals.

Koppelman's values are clear: he is against discrimination; he believes that one's sexual orientation should not be viewed as a danger to one's fellows; and he believes that the enforcement of such nondiscrimination by society is appropriate. Because Koppelman appears to have some difficulty with noncommercial associations having the freedom to discriminate among members, perhaps it is fair to say that Koppelman believes that individuals must have the freedom to work out their own lifestyles and not be penalized for the choices they make (or feel compelled to make) with regard to their intimate behavior toward others. Koppelman has not said this explicitly, but perhaps it does not go too far to suggest that Koppelman's critique of the Dale Court flows from his adherence to the views of the “mystery passage,”Footnote ⁷⁸ and its reluctance to permit the government to be involved in dictating moral choices, especially those based on religion. While the Boy Scouts claimed that their decision to exclude homosexuals from their membership flowed from their religious and moral views, and while Koppelman does not contest that those views might well be sincerely held (though there was some debate about that in the Dale case), he would still let state antidiscrimination laws trump those religious and moral views. Curiously, while the Supreme Court appears to have shared Koppelman's reluctance to allow tradition and prejudice to trump antidiscrimination in the Jaycees case, in Dale the Court returned to the traditionalist view.

VIII. Conclusion: What's Really Going on in the Freedom of Association Cases

The Dale case (and Koppelman gets this one right, I think) stands for the proposition that some forms of discrimination, at least, must be permitted in furthering freedom of association. While the Supreme Court tends to ground its view in the transmission of messages, so that the Court appears to link freedom of association with the First Amendment's free speech clause, it might be more appropriate, in the Dale case at least, to see freedom of association in a context in which it is anchored in the First Amendment's “free exercise” of religion clause, since the Boy Scouts were essentially making a religious point. Dale might thus be recognized as perhaps an anachronistic case in which the Court recognizes the historic role of religious intermediate associations in promoting the good life, as described earlier in this essay.

Koppelman, with the same assurance as Sunstein, believes in the civil rights laws, and believes that the antidiscrimination norm ought to take precedence over a religiously-based purported freedom of association. Like Sunstein, Koppelman has no difficulty in understanding what is rational and right, and thus his conclusion that Dale is an exercise in “lunacy.” The views of Koppelman and Sunstein, and Justice Kennedy, are the more modern views, and purport to reflect advanced and more civilized values. But Burkeans favor following well-established traditions, on the theory that the individual may be foolish, but the species is wise. Could it be that a Burkean would embrace Dale, and reject Jaycees?

The conception of human flourishing advanced by Sunstein and Koppelman demands adherence (at least in Sunstein's case, and quite possibly in Koppelman's as well) to a certain set of political choices, including the legality of a right to privacy, the possibility of affirmative action, campaign finance reform, a secular public square, an expanded role for the federal government, and, generally speaking, restrictions on the exercise of the state police power, while aggrandizing the reach of the federal government. All of this is to favor weakening the authority of tradition, religion, and maybe even private property, in the service perhaps of the kind of redistribution and reallocation of power that has tended to characterize American politics since the New Deal. But what if the Framers got it right with regard to the inevitable nexus between law and morals, and morals and religion? What if freedom of association, as a concept, ought properly to be infused with these views of the Framers? Then, it would seem, the Dale decision was anything but lunacy; it was, instead, a reflection of a traditional Burkean deference to long-standing beliefs where matters of religion and morals are concerned. The Dale decision, then, may have been right, and, if it was, then perhaps the Jaycees decision was wrong.