From: MIKEF@brownvm.brown.edu (Mike Fessler)
Newsgroups: soc.college
Subject: Re: I'm back and badder than before
Date: Sat, 12 Dec 1992 13:19:27 EST
Organization: Brown University - Providence, Rhode Island  USA
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Ted, I'm actually rather interested in the implications of Roberts v. Jaycees
with reference to fraternal organizations. Brennan's opinion speaks of two
subdivisions of "freedom of association" that may be apposite in applying
1st Amendment protections to state statutes: "freedom of intimate association"
and "freedom of expressive association", both of which are, he says, protected
freedoms.

WRT to "intimate association", Brennan says that "certain kinds of personal
bonds have played a critical role in the culture and traditions of the Nation
by cultivating and transmitting shared ideals and beliefs...moreover, the ster
constitutional shelter afforded such relationships reflects the realization
that individuals draw much of their emotional enrichment from close ties with
others. Protecting these relationships from unwarrented state interference
therefore safeguards that ability independently to define one's identity
that is central to any concept of liberty." He goes on to state that family
ties are the sort of associations that exemplify this sort of liberty. While
fraternal organizations certainly are not families in the strict sense,
many of them do strive toward a feeling of love and close bonds between the
brothers and/or sisters of the order.

Brennan gives several criteria for relationships that might fall within
this category: "Family relationships by their nature involve deep attachments
and commitments to the necessarily few other individuals with whom one
shares not only a special community of thoughts, experiences, and beliefs but
also distinctively personal aspects of one's life. Among other things,
therefore, they are distinguished by such attributes as relative
smallness, a high degree of selectivity in decisions to begin and maintain
the affiliation, and seclusion from others in critical aspects of the
relationship. As a general mattern only relationships with these sorts
of qualities are likely to reflect the considerations that have led
to an understanding of freedom of association as an intrinsic element of
personal liberty...determining the limits of state authority over an
individual's freedom to enter into a particular association...unavoidably
entails a careful assessment of where that relationship's objective
characteristics located it on a spectrum from the most intimate to the most
attenuated of personal attachments...we note only that factors that may be
relevant include size, purpose, policies, selectivity, congeniality, and
other characteristics that in a particular case may be relevant."

In the second half of his opinion, Brennan basically concludes that when
an association's aims or stated purposes would be altered by the admission
of women, it is permitted to exclude them.

Much as I have problems with single-sex fraternities and sororities,
Brennan's opinion would seem to suggest that there might exist a fairly
persuasive argument that fraternities and sororities are permitted to
discriminate on the basis of sex, since they aspire to a great deal of
emotional and personal intimacy, are both insular and selective, and
at least make the claim that the sort of bonds that they wish to foster
would be altered by the admission of women, or men as the case may be.

Thoughts on this?
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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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