The Problems of Intimate and Expressive Association

I noted in an earlier post my dissatisfaction with the categories of intimate and expressive association that the Supreme Court first announced in Roberts v. United States Jaycees.  In this post, I briefly explain some of my concerns.  They remain relevant in light of the Court’s forthcoming decision in Christian Legal Society v. Martinez, which may prove to be the latest chapter in the clash between freedom of association and antidiscrimination law (although as Calvin notes here, the Court might not reach that fundamental issue).

Justice Brennan’s opinion in Roberts introduced the following hierarchically ordered categories of associations: 

A)   Intimate Associations

B)   Non-Intimate Expressive Associations

C)   Non-Intimate Non-Expressive Associations

This hierarchy means that the constitutional protections for C < B < A.  It turns out that the groups in B sometimes lose, and the groups in C always lose.  But the distinctions undergirding this hierarchy are indefensible.  Here is why: 

1.  Intimate Association.  Brennan offered a number of reasons for privileging intimate associations: they foster diversity, they act as critical buffers between the individual and the state, they provide emotional enrichment from close ties with others, and they help define one’s identity.  The problem is that none of these distinctions (nor any others that I have seen) provides a defensible rationale for Brennan’s line-drawing: many “non-intimate associations also further these goals, sometimes more effectively than intimate ones.  Brennan added ambiguity to arbitrariness when he suggested that we could meaningfully distinguish between intimate and non-intimate associations by considering a group’s “size, purpose, policies, selectivity, congeniality, and other characteristics that, in a particular case, may be pertinent.”  Do we really want the constitutional protections afforded to a group to hinge in part on its “congeniality”?  As Justice Stevens noted in dissent in Boy Scouts of America v. Dale, “the precise scope of the right to intimate association is unclear.”

 

2.  Expressive Association.  Brennan’s attempt to distinguish expressive from non-expressive associations failed to recognize that: (1) all associations have expressive potential; (2) expressive meaning is dynamic; and (3) expressive meaning is subject to more than one interpretation.  Consider a gay social club with twenty members (placing it well outside of the currently recognized contours of an intimate association).  Suppose that the club’s members engage in no verbal or written expression directed outside of their gatherings but make no effort to conceal their membership from their friends, colleagues, and acquaintances who aren’t part of the club.  The members of this club are not engaging in what Brennan referred to as “a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion.”  And yet there is an expressive message in their very act of gathering.  Of course, recognizing the inherent expressive potential of an association tells us nothing about whether it will be constitutionally protected: defining what constitutes expression differs from determining the scope of legal protection.  

These are just a few of the logical and doctrinal problems inherent in the categories of intimate and expressive association—I develop them more fully in this article.   

My summer writing project is an article about associational freedoms online.  I suspect that intimate and expressive distinctions fall apart even more in an online context, where social networking sites and online dating services interweave close and trivial relationships and expressive dimensions are inherent in almost every group's website and blog.  

Thomas Emerson observed almost fifty years ago that “the constitutional source of ‘the right of association,’ the principles which underlie it, the extent of its reach, and the standards by which it is to be applied have never been clearly set forth.”  Neither the passage of time nor the invented categories of intimate and expressive association have done anything to distill the accuracy of Emerson’s observation.  That can’t be a good thing for our constitutionalism.