All Commentary
Sunday, October 1, 1989

The Forgotten Right of Association

David Hood is a law student at the University of North Carolina, where he publishes The Carolina Critic, a student journal of opinion.

The Century Club of New York City, an all-male social club, was told by city of_ ficials a few years back that it no longer could refuse to admit women members. The Club, thinking that private clubs weren’t subject to such public regulation, took their case to the Supreme Court, arguing that the rights of privacy and association gave them the power to set their own membership rules. After all, this was the way the courts had always viewed private clubs.

In 1988, though, the Court decided that it would begin to make the rules. In a powerful opinion written by Justice Sandra Day O’Connor; the Court ruled that all-male clubs could no longer exclude female members, since such exclusion denied the women access to business deals with club members. No longer would the Century Club, or any similar men’s club, be allowed to hang a “No Girls Allowed” sign outside their “clubhouse.”

No consideration was given to the rights of club members to associate with whomever they please. Freedom of association traditionally has been one of the central foundations of the American way of life. This freedom enjoyed some measure of protection throughout our nation’s history, as an inherent part of our First Amendment liberties. As early as the 1830s, Alexis de Tocqueville noted this American trait with favor in his book Democracy in America. “In no country in the world has the principle of association been more successfully used or applied to a greater multitude of objects than in America,” he wrote. Unfortunately, our judiciary’s support for the right of citizens to associate freely with each other has greatly wavered over the years, as “substantive state interests” have been allowed to supersede human liberty.

Freedom of association can take many forms. The doctrine would allow people to organize formal groups under any mutually agreed-upon guidelines, including criteria for membership. It also would allow a person to become friends with anyone he chooses, or to invite any person onto his property. (One possibly legitimate caveat would be cases of criminal conspiracy.) The obvious corollary to these liberties is the freedom not to associate, since state action to force association between two parties is as unjust as preventing them from voluntarily associating.

Modern jurisprudence has taken a curious view of this right. Associational liberty has been upheld in some situations. Landmark cases in this century allowed trade unions to organize, for instance, and prevented governments from outlawing certain political groups like the Communist Party. Privacy also has been seen as an important value. One 1961 case defended, correctly, the right of the NAACP to withhold its membership list from the State of Alabama. (NAACP v. Alabama, 357 U.S. 449)

However, the courts have recently eroded the rights of private citizens to choose with whom they will associate. Associational freedom has lost out to “state interests” like foist-ing racial or sexual equality upon unwilling subjects. In 1964, for example, two cases were decided that prevented private property owners from deciding who could enter their premises. The Heart of Atlanta Motel and a Birmingham, Alabama, restaurant called Ol lie’s Barbecue were told that they could no longer refuse to serve blacks. The fact that these businesses were on private property was not seen as an obstacle to state determination of who would be allowed to associate there.

A similar intrusion into freedom of association was witnessed in 1988 when the Supreme Court decided that certain private clubs in New York City had to abide by a city law that required them to admit women.

Now, all these decisions were greeted favorably by the media. I must confess that I myself find it difficult to suppress my elation that a bunch of racists and sexists were told to shape up by the Supreme Court. However, we must not allow our personal evaluations of other citizens’ beliefs to obscure what is really going on in these cases. Even the Nazi has his freedom of speech protected by the First Amendment. The Flat Earth Society is allowed to associate and promote its ideas. Freedom of thought necessarily entails the freedom to be wrong. That is why the above court decisions can be seen as having fundamentally negative consequences for human freedom, especially that of associating with other human beings.

The Ideal of Autonomy

Why is freedom of association so important? Tocqueville championed this right by arguing that its roots are firmly planted in the ideal of autonomy: “The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears to me almost as inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundations of society.”

Thus the right can be seen as central to individual autonomy, or the power of a person to control his own actions. One should be allowed to associate with whomever he wants, just as one should be allowed to think whatever thoughts he wants. Freedom of association is just as important to individual autonomy as freedom of speech.

Indeed, freedom of association is an integral part of those liberties more commonly thought to reside in the First Amendment. Can we truly have freedom of speech if the audience is determined by the law rather than by private choices? Can we exercise freedom of the press if the readership is regulated by the state? Can we have freedom of religion if congregations are determined by government? The freedom of association sets the stage for the exercise of all these other freedoms.

Another way to think about freedom of association is under the rubric of contract law. Membership in a private club can be seen as a form of contract between the prospective member and the current members. This is how the right traditionally has been enunciated in English common law. Just as the state cannot violate freedom of contract between competent adults, so should it be prevented from interfering with the freedom to form contractual associations. Also, the state never should have the power to compel parties to contract with each other, but it certainly did in 1988 when New York’s Century Club was forced to admit women members.

Charles Murray spells out another benefit of associational liberty in his book, In Pursuit. Associations, he writes, are an integral factor in one’s pursuit of genuine happiness. This is especially true of church groups, social groups, and neighborhood associations. Murray argues that free human interaction as a process is much more important to people than any results-oriented form of welfarism. Freedom of association thus can be seen as a bulwark of the private sphere, through which most people derive their happiness and self-worth.

The key issue in legal battles over freedom of association is the definition of “public” versus “private” interaction. It is obvious that arbitrary criteria like race or gender shouldn’t be utilized in governmental decision- making, since laws should apply equally to all. However, it is difficult to see why private decisions should be subject to the same rules. Government has neither the ability nor the right to dictate how people should conduct their personal lives, providing that private interactions are conducted by mutual assent among the parties involved.

Access to the benefits of association with certain persons should not be an “overriding state interest” that justifies abrogation of associational liberty. Blacks who want some good barbecue are free to go to a shop that has a more sensible admissions policy than that practiced by Ollie’s Barbecue. There certainly were such places, even 25 years ago. Women who want membership in New York clubs should find ones that don’t shoot them selves in the foot by prohibiting female membership. More fundamentally, though, the state should not be in the business of providing “access to commercial opportunities” in the form of possible business deals with certain club members. The government might just as well tell us whom to invite to our homes for dinner, or with whom to play golf, since many business deals are conducted in these settings as well.

Also remember that if the sexist club members don’t want women there, it is highly unlikely that they will seek out the new women members to make them business propositions!

Coercion is hardly ever the answer when one is faced with people who make the wrong decisions. This is especially the case when associational freedom is at stake. The correct path is not to seek state intervention into the makeup of private associations; it is persuasion, or competition through the formation of alternative associations. Assuming that the “bad” organization doesn’t enjoy monopoly status (like a bar association), the marketplace eventually will lead to the adoption of more legitimate admissions practices, since the “old boy network” clubs will be missing out on the increased vitality and productivity brought to other clubs by their female or minority members. Just as it would be bad business these days to restrict one’s barbecue consumers to whites only, it is equally bad business to restrict one’s business dealings to members of an all-male club.

The world will not end just because the Rotary Club and Century Club have to admit women members. In fact, the clubs themselves may be better off in the long run. However, the principle of free human interaction itself is ending, if government decides it can invade the private sphere of its citizens with impunity. Freedom of association is an integral part of our Constitutional liberty, as well as a primary means of pursuing happiness. But in the final analysis, it is also an important weapon in the continual struggle against “Big Brother” statism. A society not free to associate is not free to do much else, either.