From: thf2@ellis.uchicago.edu (Ted Frank)
Subject: Freedom of Association
Reply-To: thf2@midway.uchicago.edu
Organization: University of Chicago Computing Organizations
Date: Sat, 12 Dec 1992 19:29:46 GMT

(I'm including Mike's entire post.)
In article <1gdag1INN5ds@cat.cis.Brown.EDU> MIKEF@brownvm.brown.edu (Mike Fessler) writes:
>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?

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.

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.

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".  

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.

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).

Results might vary for a small private fraternity with twenty members
that doesn't carry on very much in the way of public activities, such
as the Skull and Bones fraternity at Yale.  One with a hundred chapters
of a hundred members with another twenty thousand alumni who consider
themselves members will have trouble making the same claim for protection. 

Thank you for a thought-provoking post, and a welcome change of pace
from the flaming.
-- 
ted frank                     | thf2@ellis.uchicago.edu 
standard disclaimers          | void where prohibited
the university of chicago law school, chicago, illinois 60637