The Promise and Problems of Treating Religious Freedom as Freedom of Association

Scott M. Noveck, The Promise and Problems of Treating Religious Freedom as Freedom of Association, 45 Gonz. L. Rev. 745 (2010).

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This article explores the descriptive, normative, and doctrinal connections between religious freedom and the freedom of association. A series of recent Supreme Court decisions have significantly expanded the constitutional protections afforded to private expressive associations, and several scholars have suggested that the Court’s approach to freedom of association might provide an attractive model for religious liberty. This article argues that special protections for religious freedom and for freedom of association can both be grounded in the idea of normative pluralism: there is an important value in the promotion of a diverse and pluralistic society, as this gives rise to a wide array of collective identities that an individual can draw upon as he looks to construct and partake in a meaningful life. The development of robust constitutional protections for expressive associations reflects a recognition that certain intimate or ideological associations, even when not overtly religious in character, frequently play a role in citizens’ lives that can be quite similar to—and perhaps equally important as—their religious convictions.

The close parallels between religious affiliation and these expressive associations suggest that the two groups should be entitled to many of the same constitutional protections, yet a careful examination reveals several significant differences between the Court’s treatment of religious groups and its treatment of comparable secular associations. With respect to Free Exercise issues, the Court’s decision in Employment Division v. Smith famously rejected any constitutional right to religious exemption from otherwise neutral and generally applicable laws, but its recent decision in Boy Scouts of America v. Dale has given rise to exactly that sort of exemption right for secular expressive associations. On the Establishment side, the First Amendment requirement of viewpoint neutrality often operates as a secular counterpart to the Establishment Clause, but this analogy breaks down when applied to the newly emerging First Amendment category of government speech. These disparities in the protections for religious freedom and for freedom of association yield important insights into both doctrines, which I draw upon to suggest several possible responses to restore consistency to the Court’s First Amendment jurisprudence. %CODE2%

The Supreme Court’s current approach to the Religion Clauses[1] exhibits an extraordinary deference to the government, leaving the political process free to determine the proper scope for religious liberty and to protect it accordingly.[2] When it comes to Free Exercise claims, the government is not required to offer any accommodations or exemptions from neutral and generally applicable laws,[3] but it may choose to provide such accommodations if it sees fit.[4] On the Establishment side, the government has no obligation to prevent state funds from being used to support religious programs,[5] but it can elect to impose very strict limits on the use of public funds for religious ends if it wishes.[6] In other words, the Constitution currently treats religious organizations just like any ordinary interest group, leaving the government with significant leeway to regulate religious liberty so long as it acts on some rational basis.[7] Yet this is surely a strange result: if religion is to be treated no differently than any other matter, then why have the Religion Clauses at all?

Christopher Eisgruber and Lawrence Sager have recently put forward an alternative formulation of religious freedom that seeks to give meaningful content to the Religion Clauses through the idea of “Equal Liberty.”[8] In its most basic form, Equal Liberty insists that religiously motivated claims should neither be subject to greater scrutiny, nor entitled to special protections, simply because their motivation stems from a religious source; rather, these claims should be treated just the same as if they were made by a person with identical needs and interests but for purely secular reasons.[9] Religiously motivated actions should neither be entitled to special constitutional privilege nor subject to special constitutional disadvantage relative to their secular counterparts.[10]

Yet this alone tells us very little about how religious liberty cases should be decided unless we also have some clear picture of what it means to state a corresponding secular claim and how that secular claim would be treated by the courts. Although Eisgruber and Sager frame their argument in terms of equality, neutrality, and antidiscrimination,[11] the true driving force of their proposal must lie elsewhere: when Eisgruber and Sager call for equal treatment for religion, we need inevitably ask “equal to what?” Accordingly, Eisgruber and Sager acknowledge the need for a “general liberty principle” to form the baseline against which claims about Equal Liberty are to be measured.[12]

In Eisgruber and Sager’s view, one of the key “benchmarks”[13] for this general liberty principle can be found in the idea of freedom of association. “[B]y drawing on constitutional values of autonomy and freedom of association,”[14] Eisgruber and Sager situate religious freedom as part of the broader “right to band together for political—or, more generally, expressive—purposes.”[15] This principle gives rise, for instance, to “a constitutional right to choose . . . members in a way consistent with [a church’s] mission and principles.”[16] For Eisgruber and Sager, “[t]he important point is that contemporary constitutional law endorses associational freedom.”[17]

Eisgruber and Sager are not the first to recognize freedom of association as a model for religious freedom,[18] but their proposal comes at an opportune time for reexamining this link. The Supreme Court’s recent decision in Boy Scouts of America v. Dale[19] has brought about a significant expansion in the constitutional protections afforded to private expressive associations,[20] and this robust protection for private associations offers a powerful model for religious liberty. Yet significant differences still remain between the Court’s treatment of religious groups and its treatment of comparable secular associations, and careful reflection upon these differences yields important insights into both doctrines.

My aim in this brief article is to further explore the descriptive, normative, and doctrinal connections between religious freedom and the freedom of association. Part I details the idea of religion as a form of constitutionally protected expressive association. I begin by sketching out the normative case for granting special protection to expressive associations, building on key insights developed by Professor Kwame Anthony Appiah in his recent book The Ethics of Identity.[21] The Supreme Court has accordingly recognized constitutional protections for two overlapping categories of expressive associations, and religious organizations fall squarely within these protections. I then identify three key features of religious exercise and show that these traits can each be found in secular expressive associations as well. In light of these close parallels between religious affiliation and other expressive associations, I conclude that Eisgruber and Sager’s proposal—that we look to freedom of association as a baseline for religious liberty claims—is an attractive model for debating, evaluating, and reflecting upon our intuitions in this highly contentious area.

Part II focuses on Free Exercise issues. I begin by reviewing the constitutional protections afforded to expressive associations, devoting special attention to how the rights of expressive associations mirror various legal claims that have frequently been made (with mixed success) by religious groups. With respect to an expressive association’s claims for special exemptions, current doctrine requires that we first consider whether a practice is “central” to the association’s beliefs, then balance the burden on these beliefs against the governmental interests at stake. By contrast, the Court has treated religious exemption claims very differently, strictly forbidding judges from weighing the centrality of a given religious practice and denying any meaningful judicial protection under the Free Exercise Clause. This disparity highlights the inconsistent assumptions that underlie these two doctrines, and it suggests that the Court should consider revisiting its approach to Free Exercise exemptions in order to craft a more consistent jurisprudence.

Part III then turns to the idea of Establishment. Although there is no express constitutional constraint on what government may do to promote or establish a partisan view on any number of secular issues that matter to expressive associations, I contend that we find the basis for a secular associational counterpart to the Establishment Clause in the First Amendment requirement of viewpoint neutrality. Yet a serious doctrinal difficulty arises in the area of “government speech,” a newly emerging branch of the Court’s First Amendment jurisprudence. Government speech poses a vexing problem because the Court has given the government wide berth to promote its own message on a variety of contested secular matters, but the Establishment Clause severely restricts the government’s ability to broadcast any particular religious message. Given the close identification between religious freedom and freedom of association, this incongruity is difficult to justify on a theoretical level, and I suggest several possible jurisprudential responses to maintain a consistent and coherent approach to First Amendment issues.

I. Religion as a Form of Expressive Association[22]

Although the text of the Constitution bears no mention of any “freedom of association,” a number of Supreme Court decisions have firmly established the freedom of association as an implied First Amendment right.[23] The development of this robust protection for expressive associations reflects a recognition that certain intimate or ideological associations, even when not overtly religious in character, frequently play a role in citizens’ lives that can be quite similar to—and perhaps equally important as—their religious convictions. Recognizing these close parallels between religious affiliation and a variety of other expressive associations reveals a number of jurisprudential advantages that can be achieved by linking constitutional protection for religious exercise to the parallel rights afforded to private expressive associations.

A. The Normative Value of Expressive Associations

Expressive associations play a crucial role for individual well-being because a diverse and pluralistic society gives rise to a wide variety of collective identities for individual citizens to identify with and construct their lives around. As Professor Kwame Anthony Appiah has carefully documented, “the tools with which we make our lives include many socially provided resources and forms, among them . . . [countless] private and public institutions.”[24] This wide array of social institutions is crucial to fostering our individual identities, because “[a]n identity is always articulated through concepts (and practices) made available to you by religion, society, school and state, mediated by family, peers, and friends.”[25] Expressive associations each add their own contribution to our larger cultural repertoire, forming another resource that individuals can draw upon to construct their lives and identities;[26] these groups thereby “serve[] as an autonomous source of values for [their] members.”[27] As a result, “human flourishing—our individual well-being—demands the flourishing of the identity groups within which the meaning of our lives takes its shape.”[28] The Supreme Court has correspondingly recognized that “by cultivating and transmitting shared ideals and beliefs,” expressive associations serve to “safeguard[] the ability independently to define one’s identity that is central to any concept of ordered liberty.”[29]

On this account, a diverse array of social and cultural offerings is necessary for us to fully realize our human capacities. As John Stuart Mill famously recognized, “different persons . . . require different conditions for their spiritual development,” and “unless there is a corresponding diversity in their modes of life, they neither obtain their fair share of happiness, nor grow up to the mental, moral, and aesthetic stature of which their nature is capable.”[30] Private associations “thereby foster diversity and act as critical buffers between the individual and the power of the state.”[31] If these options were constrained by state interference, an important element of human identity would be lost.[32]

Moreover, many valuable undertakings become possible only as part of a larger, collective pursuit. This is sometimes true for instrumental reasons: large-scale political campaigns could not be successful without pooling the resources of thousands of supporters, and grand projects like the civil rights movement are made possible only by the concerted and unyielding efforts of millions of dedicated activists.[33] But collective pursuits are also distinctly valuable on an intrinsic level: communal worship, for instance, provides many churchgoers with a value above and beyond that which can be achieved through solitary prayer. As Appiah argues, there is an intrinsic value simply in having a sense of belonging to some special community.[34] And frequently these intrinsic and instrumental values will overlap: participation in a local civic group allows members to partake in a shared sense of social responsibility and to create a more vibrant local community, while at the same time producing more social benefit than the sum of individual efforts alone.

Religious associations are among the most prominent and powerful examples of these important forms of normative value, but nothing in this account is uniquely or distinctively religious. In this respect, “religions are among the many points of view held by people of the United States, and . . . all such points of view are entitled to equal respect and an equal place in the public councils.”[35]

B. Religion as Expressive Association

The Supreme Court has recognized two overlapping categories of private associations that qualify for constitutional protection: intimate associations and expressive associations.[36] Religious associations, being both intimate and expressive,[37] fall squarely within both of these protected groups.

First, “the Court has held that the Constitution protects against unjustified government interference with an individual’s choice to enter into and maintain certain intimate or private relationships.”[38] Intimate associations encompass “certain kinds of highly personal relationships” where “individuals draw much of their emotional enrichment from close ties with others.”[39] The prototypical example of an intimate association is the family relationship,[40] and the Court has stressed that intimate associations will necessarily be relatively small.[41] The close, personal relationships fostered within these intimate associations have been recognized by the Court as an important source of intrinsic value.[42]

Religious associations fall well within this protected category of intimate association. As the Court has noted, religious groups “play[] a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs,”[43] and they provide emotional enrichment through a sense of belonging and shared enterprise. Churches work to foster many family-like relationships; for example, “[p]riests and their counterparts play an amalgam of these relational and guidance roles: They act as moral advisors, as sources of consolation, as role models, best friends, and mentors.”[44] And while many major religious organizations span across the globe and include millions of members, their local church affiliates provide a smaller, intimate setting where members form “deep attachments and commitments” and “share not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life.”[45]

Second, even when a group grows too large and diffuse to operate as an intimate association, the Court has held that it may still be entitled to constitutional protection if it qualifies as an expressive association. Expressive associations are those built around shared views on disputed political or social issues.[46] Constitutional protections for these expressive associations have therefore been said to serve an instrumental purpose: the associations are protected not just because their members are part of some common group,[47] but because the group exists to advance a set of views that fall within the diversity of viewpoints that the First Amendment is designed to protect.[48] These associations may pursue “a wide variety of political, social, economic, educational, religious, [or] cultural ends.”[49] Indeed, expressive associations include not just associations that exist to advocate a particularized message, but also groups whose views are united only at a very general level.[50] The Court has consistently affirmed that religious associations provide one such set of expressive viewpoints.[51]

C. Expressive Associations as Religion

The Supreme Court has long held that the constitutional protections for the free exercise of religion also encompass many beliefs and practices that are avowedly not religious in nature, but which “occup[y] a place in the life of its possessor parallel to that filled by the orthodox belief in God.”[52] Just as most religious organizations should fall within the special protections for expressive associations, so too many secular expressive associations may be entitled to the same protections that have traditionally been afforded to religious practices.

The precise definition of “religion” is a matter of much dispute, as no single formula seems to capture the immense variety of religious practices recognized in the United States. Nevertheless, we might consider a rough account put forth by Emile Durkheim, who proposed that “[a] religion is a unified system of beliefs and practices relative to sacred things, that is to say, things set apart and forbidden—beliefs and practices that unite into one single moral community called a Church, all those who adhere to them.”[53] From this we can identify three key features of religious practice—a unified system of beliefs, collective participation, and a concept of the sacred—each of which has clear parallels in a wide array of other expressive associations.

First, Durkheim focuses on the presence of “a unified system of beliefs and practices.”[54] These systems of belief and practice can be found in a wide array of secular associations as well; people frequently form associations specifically in order to engage with others who share their same values and wish to participate in similar rituals and pursuits. To be sure, religious associations are sometimes thought to involve an especially thick and comprehensive system of beliefs, but this distinction ultimately does not carry much weight. Many secular associations have developed very elaborate sets of rituals and practices, as might be found in groups formed to celebrate a common ethnic heritage. In other cases, even a few seemingly simple principles will govern an expansive range of conduct, as is the case for moral or aesthetic codes. And in some situations, an association might hold narrow organizational principles that are nonetheless comprehensive within their intended domain, such as the rules of chivalry or etiquette. Meanwhile, many religious adherents sometimes fall far short of being entirely consistent or comprehensive in their own religious observances; it is not uncommon to speak of “Christmas-and-Easter-only churchgoers” or “cultural Jews.” Comparable belief systems can thus be found in both secular and religious groups.

Second, Durkheim emphasizes the collective aspect of religion and the value of a shared community.[55] This, too, is a trait shared in common with a vast array of private associations, whose very purpose for existing is to provide a forum for collective activity. To the extent that the presence of a community of likeminded individuals contributes to religion’s special constitutional status, many important secular associations can claim to be similarly entitled.

Finally, Durkheim calls our attention to the idea of the sacred.[56] While secular associations might not frequently refer to the “sacred” as such, many expressive associations are based around a set of convictions or core principles that are elevated to a special significance, where members perceive them to have some overriding intrinsic importance—that is, these values are set apart as something specially entitled to our reverence and respect, taking up a sacred status. Here there may be some subtle differences between religious and secular associations, insofar as religious adherents often perceive their principles as commands from a sovereign rather than convictions chosen of one’s own volition, but this distinction cannot be dispositive if we are to fairly account for animistic and other non-theistic religions.[57]

To be sure, not all private associations will fit this mold; but those that do can play an equally important role in members’ lives as a church or other locus of religious commitments. These expressive associations provide members with a valuable opportunity to engage in their sacred practices together with others who share their core convictions and principles. On this associational model, religious freedom is important not because of any unique or distinctive feature of religious faith, but rather as just one prominent example of the many ways in which membership in many private associations can play an important and valuable role in the lives of many citizens.

D. The Jurisprudential Advantages of Linking Religious Freedom to

Freedom of Association

Once we recognize this close identification between religious affiliation and other expressive associations, Eisgruber and Sager’s proposal that we determine the scope of religious freedom by looking to the equivalent protections for expressive associations offers a number of attractive practical advantages over treating religion as sui generis.

First, this approach takes a matter where many people hold deeply-rooted and entrenched opinions and ties it into a set of broader social questions in such a way as to encourage greater reflection and reconsideration. Religion is known to evoke passionate feelings, or what Eisgruber and Sager refer to as “a kind of take-no-prisoners mentality.”[58] Even before giving much thought to the issue, “most of us have strong intuitions . . . about the proper relationship between religion and government.”[59] Yet if the protections for religious freedom are tied to the rights of expressive associations, this will necessarily spur us toward deeper reflection. Those who may hold a deep hostility to religion will be unable to act on that hostility without also considering the consequences to similar-yet-secular associations which they themselves may value and belong to, while those who aspire for a world in which religious faith is pervasive will need to consider the full risk to ordered government if we were to begin granting a multitude of private exemptions for conscientious objectors to any law or policy.

This focus on religion as expressive association thereby takes the emphasis off of our personal opinions about religion as a special matter and redirects our attention toward the ways in which any number of collective associations interact with our civil order. The Constitution’s overarching concern is with setting up a structure for effective self-government,[60] rather than taking stances on highly contentious social issues, and it would be incongruous for these structural protections to turn on contemporary favor or disfavor for particular religious teachings. If we instead treat religion simply as another form of expressive association, the result will be a doctrine shaped not by whether we think religion to be virtuous or whether we think it divisive, but rather by deeper reflection upon the role of expressive associations in our civil order, independent of whether these groups exist for religious or secular purposes.[61]

Linking religious freedom to freedom of association also gives us an intuitive anchor for determining what the proper bounds of religious freedom should be. Absent some independent baseline, the two Religion Clauses appear to be irreconcilably set on a collision course: too little protection for religious freedom will inhibit free exercise, but too much solicitude for religion implicates establishment concerns.[62] By equating religion with expressive association, we can reflect on this delicate balance in an area where our intuitions are stronger and our tempers more in check.

Finally, focusing on the civic functions of expressive associations directs our attention away from the subjective motivations for one’s conduct and instead toward the actual consequences of those actions for society. It cannot be correct for analysis under the Religion Clauses to turn on the subjective motivations of policymakers, for example, because while religious beliefs can certainly lead people to support harmful and divisive actions, they can also inspire us to engage in many selfless and charitable acts. As Appiah asks, “[I]f religious scruple motivates a legislator to introduce funding to shelter the homeless or feed the hungry, should the resultant statute really be declared unconstitutional?”[63] Treating religion and expressive associations alike ensures that the religiously motivated soup kitchen must be treated the same as one funded and operated by a secular public service organization,[64] requiring us to focus on effects rather than on motives.

II. Religion, Association, and Free Exercise Exemptions

Because of these close similarities between religious organizations and other expressive associations, secular associations may be entitled to many of the same constitutional protections for their beliefs and practices that have traditionally been sought by religious organizations. Indeed, the Supreme Court’s freedom of association cases have in recent years developed a very robust set of constitutional protections for expressive associations, including a powerful right to demand special exemptions from many neutral and otherwise generally applicable laws.[65] This exemption right is balanced, however, by a rigorous inquiry into whether the practice at issue is truly central to the association’s beliefs. By contrast, in religious Free Exercise cases, the courts have steadfastly refrained from trying to measure the importance of any particular practice within a religious belief system, and the Supreme Court has expressly rejected any constitutional right to an exemption from neutral and generally applicable laws under the Free Exercise Clause.[66] The Court’s conflicting approaches to granting free exercise exemptions in these two related doctrines call into question the latent assumptions that underlie current Free Exercise doctrine and highlights the need for the Court to revisit this area to restore consistency to its First Amendment jurisprudence.

A. Constitutional Protections for Expressive Associations

The Supreme Court has addressed the rights of expressive associations and their members in a number of cases. I offer a synthesis here which divides these rights into two broad categories that mirror the sorts of Free Exercise claims that have been brought by religious groups. The first category concerns the right to be free from government-facilitated discrimination when making important decisions about one’s associational commitments,[67] and the second category concerns a right to special exemptions from laws that, while ostensibly neutral and nondiscriminatory, nonetheless impose a substantial burden on the association’s core practices and beliefs.[68] In order for these rights to apply, however, the association must prove that the burden posed by the government regulation at issue is “serious” or “significant,” a critical requirement that the Court has frequently raised in order to restrict the reach of these associational rights.[69]

1. The right to be free from discrimination or disadvantage on the basis of associational membership

In two different lines of cases, the Court has acted to ensure that individuals are not disadvantaged or discriminated against on account of their associational commitments. In the first line of cases, the Court has held that the government is prohibited from “seek[ing] to impose penalties or withhold benefits from individuals because of their membership in a disfavored group.”[70] The government cannot deny employment at a state university[71] or a defense facility,[72] nor refuse admission to the state bar,[73] simply because of past association with the Communist party; nor can a state university refuse recognition to a student association solely because of its affiliation with a disfavored national group.[74] The Court has gone so far as to extend constitutional protection even to participation in groups that engage in illegal conduct or that advocate a violent overthrow of the government, at least absent a showing that the particular members at issue specifically sought to further the illegal activities.[75] These cases reflect a recognition that even groups which have been known to advance their beliefs through questionable means might at the same time play a valuable role as expressive associations.

In a separate line of cases, the Court has held that the government cannot compel disclosure of association’s membership list where such disclosure would open a disfavored group to harassment or intimidation. The Court has accordingly rejected attempts to force the NAACP to reveal its member list when doing so would “expose[] these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility,”[76] and the Court has adhered to this principle even when the disclosure requirement is part of a neutral and generally applicable scheme like the tax code.[77] In this same vein, the Court has held campaign finance disclosure laws unconstitutional as applied to a party “which historically has been the object of harassment by government officials and private parties.”[78]

Viewed as a whole, these cases stand for a right to be free from government-facilitated coercion when making important decisions about one’s associational commitments. The government may not impair freedom of association by withholding a government benefit, by threat of sanction, or by acting to expose members to private retaliation. The result is a right of private association which directly parallels the powerful norm in religion cases that “no members of our political community ought to be devalued on account of the spiritual foundations of their important commitments and projects.”[79]

2. The right to structure and carry out an association’s practices consistent with its core principles and convictions

In addition to this negative right to be free from outside coercion, the Court has also recognized a much broader, affirmative right to structure and carry out an association’s internal affairs and practices consistent with its guiding principles and convictions. In doing so, the Court has effectively given force to a powerful constitutional right of associational exemption from otherwise neutral and generally applicable laws when these laws would have the effect of burdening the association’s core beliefs and practices.

To see how this right operates, consider the facts of Boy Scouts of America v. Dale.[80] In Dale, the Court held that the Boy Scouts are constitutionally entitled to an exemption from New Jersey state antidiscrimination laws that would have compelled them to admit a gay scoutmaster even though homosexuality runs against the association’s professed moral code.[81] Dale presents the right to freedom of association at its greatest reach, because the regulation at issue burdened only the Boy Scouts’ internal affairs, not any external expression directed toward persons outside the organization. As the Court acknowledged, the Boy Scouts are not an advocacy group,[82] and they do not “associate for the ‘purpose’ of disseminating a certain message” to outsiders.[83] Rather, the beliefs and values that the Boy Scouts claimed to have been infringed are expressed and practiced only privately within the group.[84] This is a far broader notion of “expression” than in any of the Court’s past cases, which dealt with parades and other “inherent[ly] expressive[]” contexts.[85]

By granting these internal practices a special exemption from state antidiscrimination laws, Dale represents a broad constitutional right of conscientious exemption for any association built around a set of ideological convictions, regardless of “whether [the expression] be public or private.”[86] As the Court reasoned, “an[y] association that seeks to transmit such a system of values engages in expressive activity” and is entitled to constitutional protection.[87] Following Dale, any organization that exists for the collective practice of some private code of belief or conduct now qualifies for constitutional protection, even when the group does not engage in any external expression.[88] As Eisgruber and Sager likewise conclude, “the Boy Scout case would better be understood without reference to the purported ‘expressive’ function of the scouting enterprise; if the outcome of that case is correct, it is correct because the Constitution bars the state from some forms of interference in voluntary private associations which provide . . . relational benefits . . . .”[89]

Although all of the freedom of association challenges that have succeeded in the Supreme Court have concerned control over group membership, nothing in Dale’s logic limits it to membership issues. Suppose, for instance, that the government sought to prohibit children from going on camping trips without a parent present, perhaps out of concern that camping without adequate supervision may be dangerous or concern that large youth groups may damage or deface camping sites. Under traditional legal standards, the government could justify this regulation by providing any rational basis for such a law. But under Dale, if an association like the Boy Scouts were to challenge this law, it would potentially be subject to strict scrutiny: the regulation directly impedes the group’s ability to transmit its beliefs about the importance of outdoor activities for developing important traits of character and self-reliance.

The Court’s freedom of association cases thus sweep out a remarkably broad set of rights for private associations. Under the Dale standard, any time a government regulation substantially burdens an association’s ability to engage in its core practices and beliefs, the association will be able to claim an impermissible interference with its constitutionally protected expression and may be entitled to a judicially enforced special exemption, even from an otherwise neutral and generally applicable law.

3. Limits to the Freedom of Association

Although I have argued that these associational rights may be far broader than is commonly recognized, the Court has often cautioned that “the freedom of expressive association . . . is not absolute,”[90] and it has tempered the reach of these claims through two important limits. First, before granting an association a special exemption, the Court first examines the role of a given practice to consider whether regulating that practice would “significantly affect”[91] or “impose[] any serious burden”[92] on the association’s beliefs. In various cases, the Court has undertaken this analysis and found that a challenged law would not “affect in any significant way the existing members’ ability to carry out their various purposes,”[93] that it would not impair “the organization’s ability to engage in these protected activities or to disseminate its preferred views,”[94] or that “[i]t does not require the [association] ‘to abandon or alter’ any activities that are protected by the First Amendment.”[95] Second, even after finding that some regulation burdens the association’s practice or expression of its beliefs, the regulation might still be upheld if backed by a sufficiently compelling government interest.[96] The rights of expressive association therefore ultimately turn on a traditional balancing test, with “the associational interest in freedom of expression . . . on one side of the scale, and the State’s interest on the other.”[97]

B. Religious Centrality and Free Exercise Doctrine Under Smith

While the robust protections for freedom of association suggest one possible model for religious exemptions, the Court has instead taken a dramatically different approach in its religious Free Exercise cases. In Employment Division v. Smith, the Court held that the Free Exercise Clause does not grant religious adherents any right to special exemption or accommodation from an otherwise neutral and generally applicable law, even when the law imposes a very substantial burden on religious exercise and when the government interest is negligible.[98]

The Smith decision generated enormous controversy,[99] and it has been subject to substantial scholarly criticism.[100] Much of this criticism has focused on the Court’s concern that a general right of religious exemption would lead to “a system in which each conscience is a law unto itself.”[101] This concern surely could not be the true motivating factor behind the Smith decision, for the Court has now endorsed just such a right for expressive associations.[102]

Rather, the Smith Court’s decision not to recognize this same right for religious adherents stems from its refusal to inquire into the nature and centrality of religious belief, in contrast to its practice for claims by expressive associations. In the context of religious Free Exercise claims, the Court has declared that it is fundamentally “[in]appropriate for judges to determine the ‘centrality’ of religious beliefs before applying a ‘compelling interest’ test.”[103] On this view, “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith,”[104] and “courts must not presume to determine the place of a particular belief in a religion.”[105] Indeed, the courts are now specifically forbidden by statute from taking the centrality of a religious practice into account in these cases.[106]

This reluctance to inquire into religious belief, and the corresponding refusal to consider giving different weight to different religious practices, forced the Court into gutting the Free Exercise Clause in Smith. By insisting that all religious practices must be given the same weight, the balancing test used to weigh exemptions for expressive associations transforms into a one-sided threshold test in religion cases: what level of justification must the government interest reach to overcome a burden on religious practice? When reducing the multitude of religious practices to a single, fixed weight, the Court is faced with two options: it can “level-up” religious liberty by assuming a high weight, even though many spurious religious claims would not otherwise be entitled to such weight; or it can “level-down” religious liberty by presuming a low weight, even though this works a disservice to some very sincere and powerful religious claims.[107] Recognizing this problem,[108] the Smith Court rejected the level-up approach, fearing that “[a]ny society adopting such a system would be courting anarchy.”[109] As a consequence of the Court’s insistence on protecting religion from excessive judicial intrusion, religious adherents ironically found themselves deprived of significant constitutional protection under the Free Exercise Clause.[110]

C. Internal Versus External Diversity and the Judicial Enforcement of

Free Exercise Rights

A pluralist theory of religion and association indicates that there may be good reason to share the Court’s wariness about judicial inquiries into the centrality of religious beliefs and practices. Even within a single religious sect, there may be significant disagreement about the relative importance of different practices and beliefs. Faced with such internal disagreement, a court may attempt to resolve this dilemma in either of two ways. The first option is for the court to undertake its own examination of church doctrine to try and identify the religion’s orthodoxy, but this is a course that the Supreme Court has specifically forbidden.[111] Alternatively, the court can defer to a church’s own procedures for resolving these disputes; but while this is the preferred approach,[112] it is no less problematic. Deferring to religious tribunals gets the courts out of the business of assessing church orthodoxy only by getting them into the business of identifying and ratifying the decisions of church representatives or elites.[113] And even then, judicial examination into church doctrine may still be unavoidable.[114]

This troubling need to identify and ratify a particular church orthodoxy is symptomatic of a larger problem. By isolating a particular interpretation of the church’s religious texts or tenets and identifying that interpretation as orthodox, we thereby stifle the religion’s internal diversity.[115] Church members who believe some aspect of their traditions to be wrong, misguided, or outdated may now find it even more difficult to lobby for change from within, and thus will be forced either to accede to the official view or to attempt to break off and form a new sect; these divisions then further entangle the courts in church property disputes and other thorny church-state issues that frequently arise in church schisms.[116] Thus, by grounding the right to free exercise in the beliefs of one’s sect or church, this approach to free exercise protects the rights of the religious group only by suppressing the rights of its individual members, who may find their religious exercise unprotected whenever their personal beliefs diverge from official church teachings.

There is thus an inevitable tension between normative pluralism’s goal of promoting diversity of associations—what we might call external diversity—and the similarly attractive goal of protecting diversity within those organizations.[117] If we seek to protect external diversity by enforcing a meaningful Free Exercise exemption, the courts will find themselves mired in these internal disputes and thereby stifle internal diversity, as we see in the current treatment of expressive associations.[118] If, on the other hand, we wish to keep courts out of these disputes entirely, then judicially enforced protection of religious liberty proves impossible, as we see in Smith.[119] The inevitable cost of protecting free exercise is to accept some degree of church-state entanglement.

D. Toward a More Consistent Approach to Free Exercise Exemptions

Despite the close parallels between religion and other expressive associations, the Court has taken these two doctrines in dramatically different directions, and it has thus far failed to recognize or articulate any justification for this disparity. The Court’s more interventionist approach toward expressive associations calls into question the assumptions that underlies its more restrictive approach to religious Free Exercise claims: if courts must inquire into an association’s belief structure to weigh the centrality of its practices under Dale, then the Court’s refusal to engage with these issues in Smith seems unfounded. It thus is not surprising that many scholars have accused the Court of putting its distaste for engaging with religious doctrine ahead of its constitutional mandate to protect religious exercise.[120] The Court’s divergent approaches in these two similar areas highlight the need to revisit these doctrines in order to craft a more sound and consistent jurisprudence.

III. Establishment and Associational Pluralism

The close parallels between religious organizations and expressive associations are similarly instructive when it comes to the Establishment Clause. The pluralist foundations of the freedom of association once again suggest a powerful set of normative principles that provide a theoretical basis to guide the development of Establishment Clause jurisprudence. At the same time, free speech doctrine offers an Establishment-like constraint on government action through the requirement of viewpoint neutrality. This analogy, however, proves somewhat strained when applied to the newly emerging First Amendment doctrine of government speech, highlighting a significant new challenge that the Court must face as it elaborates this doctrine in the coming years.

A. Pluralism as a Theory of Establishment

The basic idea behind freedom of association, as I have argued,[121] is that of normative pluralism: there is important value in the promotion of a diverse and pluralistic society, as this gives rise to a wide variety of collective identities that individuals can draw upon as they look to construct and partake in a meaningful life. This idea creates the foundation for a distinctively pluralist approach to Establishment issues by seeking to foster the conditions necessary for the flourishing of a diverse spectrum of religious and other viewpoints.

The pluralist theory that I have advanced here suggests two principles to guide our understanding of Establishment. First, to have a truly diverse and unfettered pluralism, the government cannot pressure its citizens toward favoring one conception of the good life over another. Second, different religions and associations must each have equal access to government-controlled resources. In short, pluralism demands nonpreferentialism.[122]

Michael McConnell has advocated a similar pluralist approach to the Establishment Clause with respect to religious liberty. The “great evil” with which the First Amendment is concerned, according to McConnell, “is government-induced homogeneity.”[123] On this view, “[t]he concern of the Establishment Clause is with governmental actions that constrain individual decisionmaking with respect to religion, by favoring one religion over others, or by favoring religion over nonreligion.”[124] Translating this to a judicially administrable standard, McConnell concludes that the Establishment Clause forbids government action if “the purpose or probable effect [is] to increase religious uniformity . . . by forcing or inducing a contrary religious practice.”[125]

B. Viewpoint Neutrality as a Secular Counterpart to the Establishment Clause

This requirement of nonpreferentialism with respect to religion finds a potential secular counterpart in the traditional First Amendment requirement of viewpoint neutrality. It is well-recognized that the First Amendment “reserves its closest scrutiny for laws distinguishing between the expression of particular viewpoints.”[126] Even among the various forms of content neutrality, the Court has occasionally tolerated discrimination on the basis of speaker identity or subject matter, but only upon a finding that the regulation was at least viewpoint neutral.[127] Indeed, even in the context of a nonpublic forum, where “[i]mplicit in the concept . . . is the right to make distinctions in access on the basis of subject matter and speaker identity,”[128] viewpoint discrimination is still strictly forbidden.[129] The Court’s extraordinary commitment to viewpoint neutrality in First Amendment law is similarly evident in R.A.V. v. City of St. Paul, which held that even when the government regulates within a category of nominally “unprotected” speech, the First Amendment still forbids it from discriminating on the basis of viewpoint.[130]

The viewpoint neutrality requirement imposes a form of nonpreferentialism in government regulation of private expressive associations. When the government regulates private speech or conduct, or when it provides some public benefit, it generally must do so in an ideologically neutral and nondiscriminatory way. It is thus appropriate that in cases where the Court has upheld government regulation against challenge on freedom of association grounds, it has emphasized that the regulation it was upholding had no direct or obvious impact on the association’s viewpoint or ideology.[131]

C. The Problem of Government Speech

While viewpoint neutrality puts religious freedom and the freedom of association on equal footing with respect to government regulation of private speech, a significant difference arises with respect to the newly emerging category of “government speech.” On the one hand, government speech is “not subject to scrutiny under the Free Speech Clause,”[132] but at the same time, “government speech must comport with the Establishment Clause.”[133] Thus, when government speech is directed at secular matters, there is no obligation of impartiality; government speech may freely “promote [the government’s] own policies or . . . advance a particular idea.”[134] But with respect to religious matters, by contrast, “government is uniquely disabled by the Establishment Clause from speaking in a religious voice.”[135]

The result is a significant disparity between the Constitution’s treatment of religious establishment and its treatment of what we might call “associational establishment.” Government speech may not be used to elevate certain religious groups over others, but the government can emphatically take sides on all sorts of secular matters that may be of equal import to comparable secular associations.

We thus allow the government to broadcast its own message regarding a variety of secular issues, but vigorously oppose government endorsement of any particular set of sectarian religious views. For instance, the government requires a Surgeon General’s warning label to be affixed to every pack of cigarettes,[136] yet if the government were to attempt to broadcast a similar message in the religious sphere—“Pastor General’s Warning: Scientology May Be Hazardous to Your Soul”—surely the Establishment Clause would forbid it from doing so. Similarly, public schools frequently teach about the importance of civic participation or the dangers of bullying and peer pressure, yet the Court has strictly forbidden the government from presenting a religious speaker at a middle school graduation,[137] or even from permitting a nominally student-led, student-initiated prayer at a high school football game.[138] And the Court has upheld the government’s promotional advertising of beef,[139] even though this surely offends vegans, yet the government would not be allowed to conduct a similar advertising campaign to promote participation in a particular religious denomination.[140]

Given the significant parallels between religious organizations and other expressive associations, it seems incongruous for such similar groups to be subject to such divergent treatment when it comes to government speech. Government speech is a very new doctrine and is still being fleshed out by the Court, so it is difficult at this point to tender more than a few general thoughts; but if we take seriously the parallels between religion and expressive association, several possible jurisprudential responses are possible.

First, we might consider abandoning the government speech doctrine entirely and instead prohibit the government from advancing any particular viewpoint or comprehensive doctrine.[141] If expressive associations can so closely resemble religious organizations, then perhaps government simply should not be allowed to favor any one set of worldviews over another—regardless of whether those views are religious or secular.

Second, we might take the opposite approach and extend the government speech doctrine to permit the government to freely promote religious messages just as it can for secular matters, allowing the government to use the “bully pulpit” to advance particular sectarian views if it so chooses. This permissible sectarianism would of course be limited only to government speech; the government would still be required to adhere to nonpreferentialism with respect to all material benefits. The government would therefore be prohibited from “coercing” belief, but not from “endorsing” it. Justice Scalia advocated for this position in his dissent in Lee v. Weisman, arguing that the Establishment Clause is offended only when government advances a particular religious orthodoxy “by force of law and threat of penalty.”[142]

Alternatively, we might attempt to salvage some middle-ground position; but to do so, we must first come up with a compelling explanation for what differentiates “legitimate” government speech from impermissible “partiality.” One possible middle ground would model itself after the current status quo, allowing government speech to take a position on secular issues but not on religious matters. Yet this is a difficult position to justify if we otherwise accept the premise that expressive associations are analogous to religious organizations, since we would then be carving out an exception to this analogy when it comes to government speech. Such differential treatment is not only inelegant, but also problematic from a textual standpoint: both the Establishment Clause and the Free Exercise Clause share the same textual reference to “religion” (referenced in the Free Exercise Clause via “thereof”),[143] so it would be peculiar to treat the freedom of religion as a form of freedom of association for Free Exercise purposes but not for Establishment purposes.

Eisgruber and Sager seek to offer one argument for why they think there is good reason to treat religion differently (and uniquely) when it comes to Establishment. In their view,

[T]he perceived stakes of being within or without these structures of belief and membership are often momentous: being chosen or not, being saved and slotted for eternal joyous life or condemned to eternal damnation, leading a life of virtue or a life of sin, acknowledging or repudiating one’s deepest possible debt, fulfilling or squandering one’s highest destiny.[144]

As a result, they argue, “public endorsements of religion carry a special charge or valence.”[145] The state promotion or endorsement of a particular theology may therefore pose a special harm that is not present when talking about government favoritism with respect to purely secular matters.

As a final alternative, we might stake out a different middle ground by allowing government speech to promote a particular viewpoint when it relates to some “legitimate” function, but not when its function is solely to influence a person’s intimate decisions. An approach of this sort has been put forth by Michael McConnell, who proposes as a theory of the Establishment Clause that “governmental action should have the minimum possible effect on religion, consistent with achievement of the government’s legitimate purposes.”[146] But while this solution may seem superficially appealing, it rests on very tenuous foundations, because there is little if any consensus on what the “legitimate” ends of government are.

Nevertheless, there are a few areas where we might agree that the government is particularly justified or particularly unreasonable in speaking out on an issue. For instance, the government might have a strong interest when its speech concerns a matter of public safety, such as advising parents on the dangers of keeping a gun in the house; or when the speech is designed to encourage compliance with the law and deter illegal behavior (since if the activity can be criminally sanctioned, then surely it can be verbally discouraged); or when it seeks to inform the public about empirically verifiable facts, as it does with cigarette warnings or prescription drug labels. On the other extreme, as McConnell argues, “the state is limited to performing those functions authorized by the people, and there is no reason to suppose that a religiously pluralistic people . . . would entrust the function of religious instruction to political authorities.”[147] On this view, courts should find government speech unconstitutional if the function of that speech is “to promote a particular view by stigmatizing or excluding nonadherents”[148]—that is, the Court should apply some form of “rational basis with bite.”[149]

To be sure, each of these different approaches to reconciling nonpreferentialism and government speech would have drastically different consequences for the permissible scope of government influence over matters of public ideology. As the Court continues to develop the government speech doctrine and confronts these tensions with other areas of First Amendment jurisprudence, it will be faced with a significant new opportunity to refashion many core First Amendment principles. Whichever of these paths the Court ultimately settles on—whether it chooses to require strict nonpreferentialism, or to expand the leeway for government endorsement of ideological messages, or to favor some tenuously nuanced middle ground—its choice is certain to have tremendous ramifications across the entire range of First Amendment law.


Although religious freedom and freedom of association share a common theoretical foundation in the idea of normative pluralism, the Court’s jurisprudential treatment of these two sets of rights has occasionally diverged in significant ways. These divergences, in turn, provide valuable insights into the substantial theoretical tensions surrounding the role of private ideological associations within the liberal political tradition. The Court’s different approaches to resolving those tensions in these two related contexts have at times given rise to dramatically different models of constitutional protection for private ideological groups, and careful attention to these latent issues proves crucial as we seek to foster a diverse set of perspectives and maintain a vibrant pluralism in the public sphere.


* Associate, Supreme Court and Appellate Practice, Mayer Brown LLP. J.D., Stanford Law School, 2009; A.B., Princeton University, 2006. My thanks to Kathleen Sullivan, Joshua Cohen, David Simpson, and Karis Gong for their helpful feedback and suggestions.

[1]. U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”).

[2]. See Samuel J. Levine, The Supreme Court’s Hands-Off Approach to Religious Doctrine: An Introduction, 84 Notre Dame L. Rev. 793 (2009); see also, e.g., Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 136 (1992) (noting that the effect of recent Supreme Court decisions has been “to shrink the scope of both Religion Clauses and thereby to restore a significant degree of government discretion”); Kathleen M. Sullivan, The New Religion and the Constitution, 116 Harv. L. Rev. 1397, 1410 (2003) (deeming “weak enforcement” of the Religion Clauses “the prevailing position on the current Supreme Court”).

[3]. Employment Div. v. Smith, 494 U.S. 872 (1990), superseded by statute, Religious Freedom Restoration Act (RFRA) of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. § 2000bb (2006)), invalidated by City of Boerne v. Flores, 521 U.S. 507, 511 (1997) (holding RFRA unconstitutional as applied to the states).

[4]. See, e.g., 42 U.S.C. § 2000bb (2006).

[5]. See Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

[6]. See Locke v. Davey, 540 U.S. 712 (2004).

[7]. Sullivan, supra note 2, at 1409-11.

[8]. Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution (2007).

[9]. Id. at 4, 52-53.

[10]. Id. at 6.

[11]. Id. at 52-53.

[12]. Id. As Eisgruber and Sager explain, “Equal Liberty insists on a broad understanding of constitutional liberty generally. It demands that all persons—whether engaged in religiously inspired enterprises or not—enjoy rights of free speech, personal autonomy, associative freedom, and private property . . . .” Id.

[13]. See id. at 90-93.

[14]. Id. at 63.

[15]. Id. at 64-65 (discussing Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000)).

[16]. Id. at 65.

[17]. Id.

[18]. See, e.g., Sullivan, supra note 2, at 1405-07.

[19]. 530 U.S. 640 (2000).

[20]. See infra Part II.A.2.

[21]. Kwame Anthony Appiah, The Ethics of Identity (2005).

[22]. The label “expressive association” may be somewhat of a misnomer. As discussed infra Part I.B, the Supreme Court has at some times drawn a distinction between “intimate associations,” which are very small groups where the protected activity takes place within the group, and “expressive associations,” which include much larger groups but were once restricted to groups that advocate or communicate a particular message to the outside world. Recently, however, the Court has expanded the category of expressive associations to include groups that spread their message only internally and are not engaged in any outward advocacy. See infra Part II.A.2. Full protection for expressive associations now extends to any group oriented around some set of ideological convictions, even if the group is not involved in outward expression or advocacy in the traditional sense.

[23]. See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 647 (2000); Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537 (1987); Roberts v. U.S. Jaycees, 468 U.S. 609 (1984); Healy v. James, 408 U.S. 169, 181 (1972) (“While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition.”); cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) (locating freedom of association in the Due Process Clause of the Fourteenth Amendment).

[24]. Appiah, supra note 21, at xiv.

[25]. Id. at 20.

[26]. Id. at 120-21 (describing culture as a Rawlsian primary good). This argument for freedom of association thereby derives from the liberal political tradition: maintaining a diverse array of associational groups is valuable because these groups are valued by individuals.

[27]. Sullivan, supra note 2, at 1401.

[28]. Appiah, supra note 21, at 73.

[29]. Roberts v. U.S. Jaycees, 468 U.S. 609, 619 (1984). Note that this argument need not turn on whether “defin[ing] one’s identity” is matter of choice or if it is largely determined by the tastes and tendencies a person is born with. Cf. McConnell, supra note 2, at 172-75 (arguing that religion should not be equated to matters of “individualistic choice”). Rather, what matters is the function these groups ultimately play in the realization of our human capacities and the construction of a meaningful life.

[30]. John Stuart Mill, On Liberty 132 (David Bromwich & George Kateb eds., Yale Univ. Press 2003) (1859).

[31]. Jaycees, 468 U.S. at 619.

[32]. Cf., e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”).

[33]. This instrumental importance of private associations to facilitate First Amendment expression is frequently emphasized by the Supreme Court. See, e.g., N.Y. State Club Ass’n v. City of New York, 487 U.S. 1, 13 (1988) (“The ability and the opportunity to combine with others to advance one’s views is a powerful practical means of ensuring the perpetuation of the freedoms the First Amendment has guaranteed to individuals as against the government.”); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) (“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association . . . .”); see also Jaycees, 468 U.S. at 622 (noting that within the political arena, “collective effort on behalf of shared goals is especially important . . . in shielding dissident expression from suppression by the majority”).

[34]. Appiah, supra note 21, at 125.

[35]. McConnell, supra note 2, at 178.

[36]. See, e.g., Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 544 (1987); Jaycees, 468 U.S. at 617-18.

[37]. Accord Duarte, 481 U.S. at 544 (“In many cases, government interference with one form of protected association will also burden the other form of association.”).

[38]. Duarte, 481 U.S. at 544.

[39]. Jaycees, 468 U.S. at 618, 619.

[40]. Duarte, 481 U.S. at 545; Jaycees, 468 U.S. at 619-20.

[41]. See N.Y. State Club Ass’n v. City of New York, 487 U.S. 1, 11-12 (1988); Duarte, 481 U.S. at 546; Jaycees, 468 U.S. at 619-20, 621.

[42]. Jaycees, 468 U.S. at 618 (describing the category of intimate associations as the “intrinsic . . . feature[] of constitutionally protected association”).

[43]. Id. at 618-19.

[44]. Eisgruber & Sager, supra note 8, at 63.

[45]. Jaycees, 468 U.S. at 619-20 (discussing family relationships); cf. Duarte, 481 U.S. at 545 n.4 (international umbrella organization for local membership groups cannot claim protection for intimate associations, but the local groups themselves might).

[46]. Duarte, 481 U.S. at 548 (considering whether the association “take[s] positions on ‘public questions,’ including political or international issues”).

[47]. See City of Dallas v. Stanglin, 490 U.S. 19 (1989) (refusing to recognize a right to associate in shared dancehalls).

[48]. See Jaycees, 468 U.S. at 618 (describing the category of expressive association as providing “instrumental features of constitutionally protected association”).

[49]. Id. at 622.

[50]. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 569 (1995) (“[A] narrow, succinctly articulable message is not a condition of constitutional protection.”); id. at 569-70 (“[A] private speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech.”).

[51]. See, e.g., Duarte, 481 U.S. at 544 (referring to “the freedom of individuals to associate for the purpose of engaging in protected speech or religious activities”) (emphasis added); Jaycees, 468 U.S. at 618 (recognizing “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”) (emphasis added); id. at 622 (describing the “right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends”) (emphasis added).

[52]. United States v. Seeger, 380 U.S. 163, 166 (1965).

[53]. Emile Durkheim, The Elementary Forms of Religious Life 44 (Karen E. Fields trans., 1995) (1912). I am indebted to Joshua Cohen for pointing me to this definition.

[54]. Id.

[55]. Id. at 39-44.

[56]. Id. at 33-39.

[57]. See generally David C. Williams & Susan H. Williams, Volitionalism and Religious Liberty, 76 Cornell L. Rev. 769 (1991).

[58]. Eisgruber & Sager, supra note 8, at 157.

[59]. McConnell, supra note 2, at 150.

[60]. See, e.g., Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution 21 (2005).

[61]. By contrast, an approach that focuses on a conception of religion as something unique can never be content-neutral, because any “distinction between religion and nonreligious ideologies and institutions . . . is based on the content of ideas and beliefs.” McConnell, supra note 2, at 118.

[62]. See Eisgruber & Sager, supra note 8, at 29, passim (Free Exercise and Establishment are “two odd and competing obligations—to treat religion both better and worse than other interests—and no discernable standard by which to harmonize them . . . . The ‘no aid’ and ‘no hindrance’ doctrines are a surefire recipe for inconsistency. These norms cut in opposite directions, and in some cases spectacularly collide.”); McConnell, supra note 2, at 135 (“If the government attempted to regulate a religious activity, it might be held to violate the Free Exercise Clause; if it carved out a religious exemption, this might be held an establishment.”).

[63]. Appiah, supra note 21, at 84.

[64]. See Eisgruber & Sager, supra note 8, at 11, 83.

[65]. See infra Part II.A.2.

[66]. Employment Div. v. Smith, 494 U.S. 872, 882 (1990), superseded by statute, Religious Freedom Restoration Act (RFRA) of 1993, Pub. L. No. 103-141, 1993 U.S.C.C.A.N. (107 Stat.) 1488, invalidated by City of Boerne v. Flores, 521 U.S. 507, 511 (1997).

[67]. See infra Part II.A.1.

[68]. See infra Part II.A.2.

[69]. See infra Part II.A.3.

[70]. Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984).

[71]. Keyishian v. Bd. of Regents, 385 U.S. 589 (1967).

[72]. United States v. Robel, 389 U.S. 258 (1967).

[73]. Schware v. Bd. of Bar Exam’rs, 353 U.S. 232 (1957).

[74]. Healy v. James, 408 U.S. 169 (1972).

[75]. See Noto v. United States, 367 U.S. 290, 299 (1961) (to punish association with a group advocating a violent overthrow of the government, there must be “specific[] inten[t] to accomplish [the organization’s goals] by resort to violence”); Scales v. United States, 367 U.S. 203, 220 (1961) (arguing that it would be unconstitutional to punish an individual “merely on the basis of his associations and sympathies”).

[76]. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).

[77]. See Bates v. City of Little Rock, 361 U.S. 516, 524-27 (1960).

[78]. Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87, 88 (1982).

[79]. Eisgruber & Sager, supra note 8, at 4; accord Appiah, supra note 21, at 91 (“[S]tate acts shouldn’t disadvantage anyone in virtue of his identity….”).

[80]. 530 U.S. 640 (2000).

[81]. Id. at 644.

[82]. See id. at 648.

[83]. See id. at 655.

[84]. Specifically, the Court explained, the Boy Scouts seek to instill a set of values in their own youth members through time spent in activities with adult leaders. Id. at 649. The activities provide a forum for the collective appreciation of these values “both expressly and by example.” Id. at 649-50.

[85]. E.g., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 568 (1995).

[86]. Dale, 530 U.S. at 648; see also id. at 650 (“[W]e must determine whether the forced inclusion of Dale as an assistant scoutmaster would significantly affect the Boy Scouts’ ability to advocate public or private viewpoints.”).

[87]. Id. at 650.

[88]. The Court did purport to find some outward-directed expression because requiring the Boy Scouts to admit Dale would “force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.” Id. at 653. What this analysis shows is not the Boy Scouts themselves projecting a message to outsiders, but rather an outside observer looking in on the Boy Scouts and drawing a mistaken conclusion about their beliefs. Under this test, even an association that avowedly organizes itself solely around a set of internal principles would be found to engage in external communication, because any time a regulation forces its members to act contrary to their beliefs, an outside observer looking in would always wrongly infer that this activity must be consistent with their beliefs.

[89]. Eisgruber & Sager, supra note 8, at 65.

[90]. Dale, 530 U.S. at 648.

[91]. Id. at 650.

[92]. Roberts v. U.S. Jaycees, 468 U.S. 609, 626 (1984).

[93]. Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 548 (1987); accord N.Y. State Club Ass’n v. City of New York, 487 U.S. 1, 13 (1988).

[94]. Jaycees, 468 U.S. at 627.

[95]. N.Y. State Club Ass’n, 487 U.S. at 13 (quoting Duarte, 481 U.S. at 548).

[96]. See, e.g., Duarte, 481 U.S. at 549; Jaycees, 468 U.S. at 623-26; see also N.Y. State Club Ass’n, 487 U.S. at 14 n.5 (noting “the State’s ‘compelling interest’ in combating individuous discrimination”).

[97]. Dale, 530 U.S. at 658-59.

[98]. Employment Div. v. Smith, 494 U.S. 872 (1990), superseded by statute, Religious Freedom Restoration Act (RFRA) of 1993, Pub. L. No. 103-141, 1993 U.S.C.C.A.N. (107 Stat.) 1488, invalidated by City of Boerne v. Flores, 521 U.S. 507, 511 (1997).

[99]. See, e.g., Eisgruber & Sager, supra note 8, at 257-61; Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1110-11 (1990).

[100]. See, e.g., McConnell, supra note 99; Douglas Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1 (1990).

[101]. Smith, 494 U.S. at 890. Michael McConnell, for instance, describes this as the “most important” idea driving the Smith decision and its “deepest and most important theme.” McConnell, supra note 99, at 1130, 1149-52.

[102]. See supra Part II.A.2.

[103]. Smith, 494 U.S. at 886-87; see also id. at 906-07 (O’Connor, J., concurring in the judgment) (determination of Free Exercise claims “cannot, and should not, turn on the centrality of the particular religious practice at issue”); id. at 919 (Blackmun, J., dissenting) (agreeing that “courts should refrain from delving into questions whether, as a matter of religious doctrine, a particular practice is central to the religion” (internal quotation marks omitted)).

[104]. Hernandez v. Comm’r, 490 U.S. 680, 699 (1989).

[105]. Smith, 494 U.S. at 887.

[106]. See 42 U.S.C. § 2000cc-5(7)(A) (2006) (“The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”).

[107]. Cf. Joel Fleischman & Pope McCorkle, Level-Up Rather Than Level-Down: Toward a New Theory of Campaign Finance Reform, 1 J.L. & Pol. 211 (1984) (examining the “level-up” and “level-down” options in the context of campaign finance reform).

[108]. Smith, 494 U.S. at 888 (“If the ‘compelling interest’ test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded.”).

[109]. Id. at 888; see also Eisgruber & Sager, supra note 8, at 85 (“[N]o balancing formula will be remotely plausible unless it applies a proportionality standard rather than a threshold test: the formula would, in other words, have to be sensitive to the nature and weight of the burden imposed on religious exercise as well as to the gravity of the state’s interest.”).

[110]. The Free Exercise Clause does continue to retain some force as an anti-discrimination measure, imposing strict scrutiny upon laws that specifically target religious belief. See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).

[111]. See Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449-50 (1969); see also notes 103-106 and accompanying text.

[112]. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709 (1976).

[113]. See Appiah, supra note 21, at 151-52; cf. Chandran Kukathas, Are There Any Cultural Rights?, 20 Pol. Thy. 105, 113-14 (1992) (discussing divisions between elites and masses within cultural communities).

[114]. [E]ven this rule requires that proof be made as to what these decisions are, and if proofs on that issue conflict the civil court will inevitably have to choose one over the other. In so choosing, if the choice is to be a rational one, reasons must be adduced as to why one proffered decision is to prevail over another. Such reasons will obviously be based on the canon law by which the disputants have agreed to bind themselves, but they must also represent a preference for one view of that law over another.

Milvojevich, 426 U.S. at 726-27 (Rehnquist, J., dissenting).

[115]. See Appiah, supra note 21, at 146-48.

[116]. See, e.g., Jones v. Wolf, 443 U.S. 595 (1979); Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440 (1969).

[117]. See generally Appiah, supra note 21, 141-54.

[118]. See supra Part II.A.3.

[119]. See supra Part II.B.

[120]. See, e.g., McConnell, supra note 99, at 1141 (criticizing the Court for reasoning, in effect, that “[i]t is better that minority religions will be at a relative disadvantage . . . than that judges have to weigh . . . the centrality of all religious beliefs” (footnotes and internal quotation marks omitted)); Laycock, supra note 100, at 30-32 (criticizing Smith on similar grounds).

[121]. See supra Part I.A.

[122]. Cf. Eisgruber & Sager, supra note 8, at 203.

[123]. McConnell, supra note 2, at 168.

[124]. Id. at 175.

[125]. Id. at 169.

[126]. Martin H. Redish, The Content Distinction in First Amendment Analysis, 34 Stan. L. Rev. 113, 118 (1981).

[127]. Id.

[128]. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 49 (1983).

[129]. See id. at 49-50.

[130]. 505 U.S. 377 (1992); see also id. at 392 (“St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.”).

[131]. E.g., Roberts v. U.S. Jaycees, 468 U.S. 609, 623-24 (1984) (emphasizing that the challenged regulation “does not distinguish between prohibited and permitted activity on the basis of viewpoint . . . [n]or does the Jaycees contend that the Act has been applied in this case for the purpose of hampering the organization’s ability to express its views”).

[132]. Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1129 (2009); see also id. at 1131 (“The Free Speech Clause . . . does not regulate government speech.”); id. at 1132 (“[G]overnment speech is not restricted by the Free Speech Clause.”); id. at 1138 (“[W]e hold that the City’s decision to accept certain privately donated monuments while rejecting respondent’s is best viewed as a form of government speech. As a result, the City’s decision is not subject to the Free Speech Clause . . . .”).

[133]. Id. at 1132.

[134]. Bd. of Regents v. Southworth, 529 U.S. 217, 235 (2000).

[135]. Sullivan, supra note 2, at 1405.

[136]. Public Health Cigarette Smoking Act of 1969, Pub. L. No. 91-222, 84 Stat. 87 (codified as amended at 15 U.S.C. §§ 1331-1340 (2006)); see also Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992).

[137]. Lee v. Weisman, 505 U.S. 577 (1992).

[138]. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

[139]. Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005).

[140]. On the other hand, the Establishment Clause does not appear to prevent the president or a congressman from invoking sectarian religious sentiments in a public speech. But assuming this were merely the practice of a few individual officials rather than some institutionalized policy, we might attribute this speech to the officials in their private, individual capacity rather than to the government.

[141]. The idea of a comprehensive doctrine is elaborated in John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997).

[142]. Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissenting) (emphasis omitted).

[143]. U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”).

[144]. Eisgruber & Sager, supra note 8, at 125-26.

[145]. Id. at 126.

[146]. McConnell, supra note 2, at 169.

[147]. Id. at 162.

[148]. Id. at 164.

[149]. Gayle Lynn Pettinga, Note, Rational Basis with Bite: Intermediate Scrutiny by Any Other Name, 62 Ind. L.J. 779 (1987) (for use of the term); see also, e.g., Romer v. Evans, 517 U.S. 620, 632 (1996) (striking down state constitutional amendment under rational basis review after finding that the law “seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests”); U.S. Dept. of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (holding that “a bare . . . desire to harm a politically unpopular group” is not a legitimate state interest).

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