The Associative Right Needs Defending -Philanthropy Daily

In a new Heritage Foundation paper, Duquesne University Professor Luke C. Sheahan—arguing that the fundamental American right of self-government is grounded in associations, manifested in colonial practices which became the framework for the Great Experiment of nationhood—declares that America’s standing, and its future, is intimately connected to the strength of those institutions which comprise our unique civil-society, now in great need of protection from, and help from, our courts and legislatures.

Also in need of greater understanding and defense, writes Sheahan, is the Constitution’s protection of the associative right – enshrined in the First Amendment’s “Assembly Clause” (recognizing the “right of people to peaceably assemble”) and the Fourteenth Amendment’s guarantee of “liberty” (as articulated in the U.S. Supreme Court’s landmark 1958 NAACP v. Alabama ruling) – now under duress due to the “astronomical growth” of the state, coming “at the expense of social groups,” and our national essences. The report, Restoring Civil Society, seeks to reinvigorate the understanding of the central and defining role civil society which has in the American experiment, and to encourage a more vigorous defense of civil society by the federal courts, and to promote model legislation that he calls “The Freedom of Association Protection Act” (FAPA) a proposal based on the Congressional Religious Freedom Restoration Act (RFRA).

Sheahan argues that the right to association, and civil society, are “pre-political” fundamentals infused in and implied by the Constitution’s very first words: “We the people.” Indeed, he notes that in the initial debates in the House of Representatives to craft the Bill of Rights, “there was disagreement about whether to include the Assembly Clause in the text at all, as it was thought to be implicit in the other rights. How could one freely exercise religion or speak without assembling with others?”

Despite this assumption of the obvious, and the associative right’s consequent enshrining in the First Amendment, Sheahan holds the “Supreme Court has been reticent to recognize the full breadth and civil society ramifications of the Assembly Clause.” Given the continued growth of government, which consequently diminishes this right, as well as diminishing the ability of “we the people” to engage in a of robust civil society, he contends America must acknowledge a need to rekindle the “lost art of association,” and targets judicial and legislative means by which legislatures – both federal and state – and courts must act to restore what the unique “social vitality” that Alexis deTouqueville found “quintessentially American” when he visited and wrote about this unique nation in Democracy in America.

On the judicial front, Sheahan sharply critiques recent “Supreme Court jurisprudence” for “severely lacking in recognition of the functional autonomy of groups in its freedom of association jurisprudence, largely ignoring the text, history, and implications of the Assembly Clause.” Among the cases he cites is the Court’s 1984 Roberts v. U.S. Jaycees ruling, which held that “freedom of association applied only to groups whose expressive purpose was hindered by government policy,” and the 2010 Christian Legal Society Chapter v. Martinez decision which ruled that “a religious student group could not use Christian doctrinal and morals standards when choosing leaders and voting members,” thereby “ignoring entirely that the First Amendment protects the right of peaceable assembly untethered from expression, which indicates protection for non-expressive as well as expressive groups.”

The consequence: “the Court has entirely ignored the Assembly Clause and its ramifications, namely, protection for peaceable functions beyond expression.”

The remedy, he proposes, is not to await another Court opportunity, but to consider a Freedom of Association Protection Act, which would require adoption by both Congress and the state legislatures. “By passing this law,” Sheahan says “legislatures could do for freedom of association and the functional autonomy of civil society associations what they did for religious organizations through the Religious Freedom Restoration Act.” Passed in 1993, RFPA was itself was a legislative response to and remedy of the High Court’s controversial 1990 Employment Division v. Smith decision, which deemed constitutional Oregon’s “neutral and generally applicable law that had the incidental effect of prohibiting a religious practice.”

Though it has yet to be introduced in Congress, Sheahan says model FAPA legislation would

secure associational freedom for civil society groups by defining freedom of association in terms of “functional autonomy”; requiring federal and state courts, respectively, to apply strict scrutiny to claims of freedom of association; and to recognize the centrality of “central tenets” and “prescribed practices” to the operation of civil society groups. This would protect civil society groups from the inappropriate application of public accommodation laws and restrictions upon associational rights.

Among its benefits, a FAPA law would “protect the autonomy of religious organizations to maintain the character of their faith when carrying out secular social services duties at the behest of the government,” and address a broadening of existing 501c3 charitable tax laws.

The heart of Sheahan’s proposed bill is its declaration that

Government shall not substantially burden a person’s freedom to associate or assemble with others for any peaceable purpose; nor shall the government substantially burden the functional autonomy of any association; nor shall it inappropriately interfere with the prescribed practices, or internal norms, of an association.

“The centralization of power through the 20th and 21st centuries has sapped” American civil society,” Sheahan writes, and threatens the Republic’s very foundation, because “U.S. associations do not just enable self-government: They are self-government.”

It would be hard to argue that associations are not under societal duress, and that the associative right is has not been downplayed, by even a “conservative” Supreme Court. And it would be hard not to seriously consider a proposal like the Freedom of Association Protection Act as a necessary solution to a tense situation that will determine if the Constitution’s claim of America being an aspirational “more perfect Union” has lost its meaning.