Anthony Dearduff reviews John Inazu’s book:
Liberty’s Refuge: The Forgotten Freedom of Assembly
To many in the law, the First Amendment “right of the people peaceably to assemble” may seem little more than the aspirational vestige of a bygone era. It may have fortified early generations who had reason to fear forced dispersion of dissident political assemblies, but has little practical application in our more enlightened and progressive age. Nowadays, as law students (and Wall Street occupiers) quickly learn, the heavy lifting is done by “the freedom of expressive association” and “forum analysis”—concepts that, if less tightly moored to the First Amendment’s text, are nevertheless firmly anchored in contemporary jurisprudence.
In Liberty’s Refuge: The Forgotten Freedom of Assembly, Washington University (St. Louis) law professor John Inazu skillfully argues that we have lost something critical in this shift from assembly to expressive association; namely, the benefits of a meaningful pluralism. The reorientation toward our present-day associational hermeneutic, Inazu contends, has elevated a particular conception of stability and social cohesion at the expense of group autonomy. The result has been “the loss of meaningful protections for the dissenting, political, and expressive group” (4). Nowhere is this clearer than when group autonomy comes into conflict with antidiscrimination or equality-promoting statutes. In the 2010 case of Christian Legal Society v. Martinez, for example, “the Supreme Court relied on a muddied area of free speech doctrine to deny the right of a religious student group to limit its membership to those of its choosing, the right to retain control over its own message—the right to exist” (5).
More specifically, a five Justice majority held that California’s Hastings College of the Law could deny official recognition to a Christian Legal Society group on the grounds that the group’s required “statement of faith” regarding sexual morality was incompatible with the school’s requirement that club leadership positions be open to all students regardless of sexual orientation. Applying its First Amendment “forum analysis” rubric, the majority determined that Hastings’ requirement was a “reasonable, viewpoint-neutral condition on access to the student-organization forum.” Concurring, Justice Kennedy emphasized that Hastings could reasonably consider a belief-affirming or outside conduct requirement to be “divisive for student relations” and inconsistent with an atmosphere of free and open discussion. “The era of loyalty oaths,” he proclaimed, “is behind us.”
Even granting that cases like Martinez may reflect a streak of liberal paternalism, one might nevertheless invert Inazu’s proposal and ask why we should protect group autonomy at the expense of stability, equality, and inclusiveness. He responds with a powerful observation from Yale law professor Stephen Carter: “Democracy advances through dissent, difference, and dialogue. The idea that the state should not only create a set of meanings, but try to alter the structure of institutions that do not match it, is ultimately destructive of democracy because it destroys the differences that create the dialectic” (5). Furthermore, Inazu notes, the expressive association analysis is “underwritten by a political theory of consensus liberalism, which purports to be ‘procedural’ or ‘neutral’ but whose espoused tolerance extends only to groups that endorse the fundamental assumptions of liberal democratic theory” (11). Thus, the associational hermeneutic does not merely sacrifice group autonomy for the sake of stability and social cohesion generally, but rather for the realization of a very particular conception of those goods as envisioned by Rawlsian academic elites. If followed to its natural conclusion, Inazu notes, such a view marginalizes not only all-Christian student groups, but also “all-female sororities, all-female health clubs, and all-gay social clubs. In other words, it leaves us without a meaningful pluralism” (11).