From: MIKEF@brownvm.brown.edu (Mike Fessler)
Newsgroups: soc.college,misc.legal
Subject: Re: Freedom of Association
Date: Sun, 13 Dec 1992 01:56:34 EST
Organization: Brown University - Providence, Rhode Island  USA
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In article <1992Dec12.192946.7635@midway.uchicago.edu>, thf2@ellis.uchicago.edu
(Ted Frank) said:
>Eric Schwartz wrote an excellent article in the University of California
>Law Review a few years ago on precisely this subject; I'd refer you to his
>article, as I suspect I have little to add.

Thanks for the reference. My thoughts were purely off-the-cuff, and I'd
like to see what Schwartz has come up with after actually doing some
substantive research on the issues involved. :-)

>It's uncontroversial that the government may infringe upon "expressive
>association" with the "compelling interest in eradicating discrimination,"
>so I'll leave that issue alone -- the question arises whether fraternities
>are "intimate" or "expressive" associations.

Depends on the expressive aims of the association, I think. Brennan made
a very big deal out of the fact that the Jaycees' stated aims would not
be seriously burdened by the inclusion of female members, since their
ability to "engage in...protected activities or to disseminate its
preferred views." I read this largely as a pragmatic judgement that
the Jaycees' activities and ideology are really quite unrelated to
gender, and that any claims that the group's ideology might be changed
by womens' inclusion were speculative and unsubstantiated. Being a member
of a co-ed fraternity that I believe has attained the sort of inter-
personal bonds of trust that all-male fraternities claim to strive
toward, my view is that the admission of women need not change the
stated aims of "brotherly love" of all-male fraternities. Then again,
I don't have any experience as a member of an all-male house making
the transition, so I don't know how difficult that might be or what
kind of changes might take place. I agree that the argument from
intimate association is the stronger one, though.

>Fraternities advertise themselves as places that can help one make business
>contacts and give educational support.  On Brennan's axis ranging from
>"the selection of one's spouse" to "the choice of one's fellow employees"
>(408 US at 621), I'd argue that fraternities are closer to the latter
>than the former, and are engaged in expressive association, rather than
>intimate association -- fraternities that engage in broad public recruitment
>efforts would have trouble arguing that their association is "intimate".

I guess that this, too, depends on the fraternity. Mine holds rather
few public events -- mostly literary readings, sponsorship of speakers,
and so forth, and an occasional party. We tend to conceive of them as
"opening our home to guests". Our internal activities are chiefly
directed toward building bonds between members, and the most significant
ones are members-only and secret (in my view, mostly to build trust).
We don't bill ourselves to prospective members as a place to make
contacts or get access to an exam bank, but as a place to make close
friends and have an experience in group living and interaction that
will be an important part of their lives. And play lots of board
games, too. :_)

>In Rotary International v Rotary Club of Duarte,
>107 S Ct 1940 (1987), Powell, in a 7-0 decision, found it important
>that many central Rotary activities "are carried on in the presence of
>strangers."  The Court seems to have a narrow view of what constitutes
>"intimate or private" relations subject to associational rights -- witness
>the infamous Bowers v Hardwick decision, 106 S Ct 2841 (1986).  IMO,
>wrongly decided, but one can't get too much more "intimate" than consensual
>sexual relations in the privacy of one's home; I don't see where the Court,
>having drawn the set of intimate relations so narrowly, can consistently
>claim that fraternities would fit within that set, but Mr. Hardwick wouldn't.
>That, of course, wouldn't stop it from doing so.  I personally would
>draw the scope of what constitutes intimate association farther than the
>Court has (what _has_ the Court included in that category other than
>marriage?), but I don't have any trouble making and defending the contention
>that most fraternities don't qualify.

I agree that Bowers v. Hardwick is an abysmal decision. I'm not sure
that it's been officially included, but Brennan cites NAACP v. Alabama
in the intimate association part of his opinion. (Which confused me,
since the NAACP seems tailor-made as an example of protected expressive
association, but anyway....) I guess I don't have experience with
how most fraternities are run, since I'm aware that ours is somewhat
atypical. Still, I think that most aspire, at least, to "fraternal love"
of some ilk. It might simply be a pragmatic question as to whether
any particular organization in fact exhibits it, but that puts the
judiciary into the uncomfortable position of evaluating whether or not
a particular group of people is sufficiently close/intimate that their
association is constitutionally protected, a messy and piecemeal
situation at best, as you point out WRT Skull and Bones vs. a large
national frat.

>One can't make too much out of a denial of cert, which has no precedential
>value, but the Court *did* refuse to review the opening of the Princeton
>eating clubs, which for all intents and purposes, I would argue are *more*
>intimate than the typical single-sex fraternity.  Frank v Ivy Club (1991).

I know vaguely what the Princeton eating clubs are, but that's about
it. How would you argue that they're more intimate?  (Also, sounds to
me that the Court doesn't want to open a can of worms WRT this
issue -- maybe they too fear that it's too messy to issue a broad
ruling on, too? :-) )

>Thank you for a thought-provoking post, and a welcome change of pace
>from the flaming.

Delighted. And sorry I don't have proper citations for my cases --
I'm taking quotes from Murphy, Fleming, Harris's _American
Constitutional Interpretation_.
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Michael Fessler                                   mikef@brownvm.brown.edu
   To light a candle is to cast a shadow.  -- Ursula K. LeGuin
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