Where Two or More Are Gathered, the First Amendment Should Protect Them

The Christian tradition has a lot to say about community. People werent made to be solitary individualists. Aristotle may have been the first to describe man as a social animal, but he was not the first to recognize our inherent sociability.

The Scriptures describe God creating human beings to have fellowship with him. As God himself has eternal fellowship within the triune Godhead, human beings are also designed to have fellowship with each other. As God proclaimed in the Garden of Eden, It is not good for the man to be alone (Gen. 2:18). Over the course of biblical history, God ordains a series of social institutions: marriage, family, state, church. Of course there is an important place for the individual in Christian anthropology. But the point is that the individual existsis created to existwithin a rich set of social interactions, institutions, and associations.

Mainstream contemporary political and legal theory, by contrast, tends to operate within a more constrained social landscape. The focus is on the relationship between the individual and the state. By comparison, non-state social groups get short shrift.

Several scholars have been working to change that, including Luke C. Sheahan, a political theorist at Duquesne University. Sheahans new book, Why Associations Matter: The Case for First Amendment Pluralism, makes the case for the importance of voluntary associations in our political landscape. Rather than the dichotomy of individual and state, Sheahan offers an account of society with three components: individual, state, and association. He argues that the American judiciary in particular has failed to recognize the importance of associations. Finally, he suggests ways to do better in the future. Thats where the First Amendment comes in, with its promises of protection for freedom of speech, religion, and assembly.

The books first task is to develop what Sheahan calls a political sociology of associations. Sheahan, echoing the sociologist Robert Nisbet, argues that human beings are social creatures who crave community and connection with others. This is a point that will intuitively appeal to many readers, but Sheahan doesnt elaborate on the foundations for the insight. One might wonder (as John Dewey did years before) whether this is grounded in psychology, biological instinct, or something else. To these, one could add Christian anthropology. In any case, Sheahan never invokes religious reasons, and it is enough for him that one accepts that humans are social.

Sheahan believes that associating with others has intrinsic value. It is in various social groups, he writes, that ones very personality is shaped and within which one finds identity and purpose. What is an association? Its not just a casual meeting of people. But neither does it have to be a formal organization with a constitution and bylaws.

Sheahan defines associations functionally (again drawing on sociological work by Nisbet), listing seven characteristics. Each association has (1) a function, (2) a sense of purpose (which will often coincide with the function), (3) an authority structure, (4) some amount of hierarchy, (5) solidarity among members, (6) a sense of the associations importance, and (7) a belief that the association has a special status relative to the rest of the world. This is a rich description of an association, whether or not one agrees with every point. This kind of association is one with a strong conception of its own identity and purpose.

So how does all of this apply to our legal system and political culture? Sheahans critique of existing law focuses on the Supreme Courts treatment of associations under the First Amendment. The First Amendment freedom of association protects freedom of speech and assembly (as well as religious freedom and press freedom). But the Supreme Court has done very little to recognize assembly as a right on its own. Instead, it has largely replaced references to freedom of assembly with references to freedom of association.

This might sound like a distinction without a differenceuntil one considers what association means to the contemporary Supreme Court. Association is not valued for its own sake but only as a means to further free speech. Building on the pioneering work of evangelical legal scholar John Inazus critiquing the reduction of association to speech, Sheahan explains that the Supreme Court has made speech as an individual right the predicate for the recognition of any associational rights. Sheahan calls this the First Amendment dichotomy: For the Supreme Court, First Amendment rights are either individual rights, or else there are no limits on how the government can restrict them.

Problems with this line of reasoning were evident in the Supreme Courts 2010 decision in Christian Legal Society v. Martinez. In that case, the University of California Hastings College of the Law required student organizations to be open to any student. It refused to recognize a student chapter of the Christian Legal Society because the group required its officers to hold Christian doctrinal and ethical commitments, including the belief that sex should be reserved for marriage between a man and a woman. The Supreme Court ruled in favor of the university. It could require a student group to admit anyone to membership regardless of the groups own convictions (or else give up its status as a recognized student organization on campus).

Sheahan thinks the court was seriously mistaken in its approach. His point is not just that the courts majority was wrong. Sheahans argument goes deeper, criticizing even the dissenting justices who would have ruled in favor of the student group. The problem, Sheahan says, is that neither the majority nor the dissent gave an account of why associations are valuable apart from their instrumental utility in advancing speech by individuals within the association.

In place of the existing precedents, Sheahan argues that the courts should recognize associations, not just individuals, as bearers of First Amendment rights. He calls this First Amendment pluralism. These rights shouldnt depend on the association being expressive (that is, primarily concerned with speech). This associational right could be rooted in the Constitution (perhaps in the First Amendments guarantee of the right to assemble) or in a specific statute. Sheahan suggests legislation (modeled on the Religious Freedom Restoration Act) that would compel judges to apply strict scrutiny to any government action that infringes on the freedom of association, broadly defined.

An obvious objection to this kind of protection for associations is that it could undercut civil-rights protections. Sheahan has two main responses, both familiar to those following the conversation on associational rights.

First, Sheahan says that his argument only concerns protection for voluntary associations, not for commercial or educational organizations (a racially discriminatory private school could still lose its tax exemption, for example). Second, he suggests that race discrimination might be a unique (and uniquely unjust) form of discrimination, such that a state university (for instance) could rightfully refuse recognition to a voluntary student organization that practices it. Sheahan recognizes that this raises as many questions as it answers. What characteristics make race discrimination different? (Is it the troubled history of race relations in America? The centrality of race to a persons identity?) Are there other kinds of discrimination (sex or, more controversially, sexual orientation) that are covered by the same principles? Does it undercut a principled commitment to associational pluralism to recognize areas where the state has a compelling interest in prohibiting discrimination? These are tough issues. To his credit, Sheahan doesnt shy away from this. But given that hes not the first to confront the issue, hopefully we will see more work on the subject in the future.

Another question that Sheahan doesnt analyze at all is how a defense of associational rights relates to corporate rights. Corporations are voluntary associations of a sort. The Supreme Court has controversially said that corporations can exercise constitutional rights. How does this fit with Sheahans vision of associational rights? And what makes commercial organizations different from noncommercial voluntary associations?

Sheahan doesnt have all the answers. But his book advances an important conversation about how to appreciate the social dimension of lifeincluding associationsin the face of an individualistic intellectual culture. Sheahans synthesis of work by Nisbet and others on the structure of associations is likely to become a point of reference for anyone serious about understanding the structure of human sociability. And his analysis of the Supreme Courts approach to association deepens existing critiques.

Even though this book isnt specifically about religious organizations, this conversation is one that Christian readers in particular have reason to care about. Churches have an interest in seeing continued legal protection as institutions; religious organizations like the Christian Legal Society are directly affected when courts recognize (or fail to recognize) associational rights. Christian teaching is already clear that human nature craves fellowship and sociability. Figuring out how to wisely live that out is a task for everyone.

Lael Weinberger is the Berger-Howe Legal History Fellow at Harvard Law School.