September 9, 2021
The term “right of association” does not appear in the text of the U.S. Constitution, but the concept is among the basic preconditions for the Constitution. The idea of this right is that citizens should be free to join with others to pursue a common cause. This has a positive and negative implication – the ability to form associations and the ability to refuse to participate.
As a foundational matter, the Constitution of the United States is an associational document. It begins by invoking the desire of the people of the various states to “form a more perfect union.” In the First Amendment, freedom of association is implicated in the guarantees of freedom of speech and the right to petition the government for a redress of grievances, since free expression and political influence are often channeled through and amplified by groups we participate in.
In fact, one of the most famous Supreme Court decisions on freedom of association involved an attempt by the state of Alabama to obstruct the civil rights movement, not by directly banning speech but by gaining access to membership rolls of the NAACP, which could allow individual members to be intimidated.
Like other critical rights, the ideal of freedom of association has roots in and has been enhanced by the efforts of religions and people of faith to assert their convictions.
We might even say that the United States had its genesis in a conflict over association – specifically, the quest of some religious dissenters to seek places in North America where they could form communities that were conducive to their beliefs and, at the same time, disassociate themselves with the official state religion of England.
One of the primary constitutional manifestations of the freedom of association is another provision in the First Amendment. The Establishment Clause prevented the national government (it later would be interpreted to apply to the states) from creating an official church of the United States. This prevented a range of problems like government compulsion of religious practice, tax funding of churches and clergy, and government interference with the operation of churches.
Another problem that had already been addressed in the main body of the Constitution was the possibility of someone being denied opportunities for public office or public service based on their religious affiliation or belief.
Some of the important freedom of association cases involved religious claims, such as the Boy Scouts’ desire to ensure its volunteer leaders affirmed the message of its organization. Perhaps the best example of the principle in action, though, comes from cases that do not explicitly mention association. These are the decisions in which the Supreme Court ruled the government could not hear lawsuits challenging internal religious disputes, such as over who would promulgate the message of a religious organization.
Like all constitutional rights, there are limits to the right. There have been cases where organizations challenged discrimination laws in order to avoid allowing women to be members, but in these cases, which did not involve speech or religious freedom considerations, the court declined to extend the right of association.
The contribution of religious groups to shaping the law of freedom of association is important because that freedom is so intertwined with important values like the protection of conscience and the ability to effectively participate in the political system. The Supreme Court has invoked it to prevent forced disclosure of donations to nonprofit organizations, the use of mandatory dues or fees from unwilling employees to support unions, and the ability of political parties to establish their own rules for selecting candidates.
It is another important example of how increasing the circumference of freedom for people of faith increases it for everyone.
Even though the Supreme Court does not resolve a large proportion of the cases that are presented to it, the decisions it does issue reverberate to affect many other disputes through the principle of precedent. Its decisions on a handful of cases can, over time, expand and contract the rights of the entire nation.
For many voters, 2020 may have been their first experience with voting by mail. However, VBM in both the United States and Utah specifically is not new. In America, VBM has a history that spans centuries.
The judiciary branch is designed as a responsive, not proactive, branch of government. The court can’t tell Congress not to pass an unconstitutional law or tell the president not to issue a legally invalid order. It must wait until after those actions take effect and someone challenges them.