SCHOOL OF LAW

Legal Studies Research Paper Series

HOW NECESSARY IS THE RIGHT OF

ASSEMBLY?
Washington University Law Review (forthcoming)

Robert K. Vischer
Professor and Associate Dean for Academic Affairs

University of St. Thomas School of Law

Legal Studies Research Paper No. 12-11

This paper can be downloaded without charge from

The Social Science Research Network electronic library at:
http://papers.ssrn.com/abstract=2029979

A complete list of University of St. Thomas School of Law

Research Papers can be found at:
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 How Necessary is the Right of Assembly?

Robert K. Vischer1

As a political culture seemingly hard-wired for the full-throated championing of individual

rights, we are not quite sure what to do with liberty claims by groups. Whether were talking

about corporate speech rights,2 the treatment of religious student groups at public universities,3 the

limits of the ministerial exception,4 the Boy Scouts right to discriminate,5 or churches access to

public schools,6 we have seen a recent spate of conflicts involving groups that have spawned both

political battles and landmark Supreme Court rulings. As such, our uneasiness with the right of
1
Associate Dean for Academic Affairs and Professor of Law, University of St. Thomas School
of Law (Minnesota).
2
Citizens United v. Federal Election Commn, 130 S. Ct. 876 (2010). See also, e.g., Mimi
Marziani, Growing backlash against Citizens United, Natl Law J., Jan. 23, 2012 (The logic of
FEC v. Citizens united quickly led to the creation of Super PACs, mutant political groups that
can collect and spend unlimited amounts on electioneering, limited only by impotent rules that
supposedly prevent them from directly strategizing with candidates . . . .).
3
Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010) (upholding public universitys
right to require that all student groups be open to all students). See also, e.g., Pierce Greenberg,
Vanderbilt administrators defend nondiscrimination policy to packed town hall, Nashville City
Paper, Jan. 31, 2012 (reporting on controversy surrounding Vanderbilt Universitys requirement
that leadership of Christian student groups be open to non-Christians).
4
Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Empl. Opportunity Commn,
132 S. Ct. 694 (2012) (affirming that First Amendment guarantees churches the right to select
their own ministers without clarifying the scope of ministers). See also, e.g., Jeff Zeleny and
Michael Luo, Obama Seeks Bigger Role for Religious Groups, N.Y. TIMES, Jul. 2, 2008, at A1
(reporting on Sen. Obamas proposal to forbid employment discrimination by recipients of
federal funding); Dana Milbank, Salvation Army, Bush Work to OK Hiring Ban on Gays, WASH.
POST., Jul. 10, 2001.
5
Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000). See also, e.g., Ian Urbina, Boy Scouts Lose
Philadelphia Lease in Gay-Rights Fight, N.Y. Times, Dec. 6, 2007 (reporting on citys eviction
of Scout troop over policy discriminating against gays); John Iwasaki, Atheist expects Boy
Scouts to change, but not soon, Seattle Post-Intelligencer, Dec. 29, 2002. (plus media
controversies re gays and atheists)
6
Good News Club v. Milford Central School, 533 U.S. 98 (2001) (upholding Christian groups
right to use public school facilities on same terms as other community groups). See also, e.g.,
Kate Taylor, Mayor Defends Ban on Church Services in Schools, Feb. 13, 2012 (reporting on
New York Citys decision to ban churches from holding services in public schools).
1
association as a constitutional matter may have something to do with our uneasiness with the

freedom of associations as a political matter. We do not quite know what to do with groups.

Judging from the public reaction to the Courts Citizens United ruling,7 we do know that

Americans tend to reject the notion that the corporate person possesses rights on par with the

human person.8 And while citizens are more inclined to defend the autonomy of religious groups,

it is not clear whether that inclination is just a relatively weak extension of our traditionally strong

commitment to individual religious liberty, or whether there is meaningful recognition of the

importance of group liberty. Especially outside the context of religious organizations, the

deference owed to groups by the surrounding political community remains unsettled.

Todays most contentious debates about legal protection for group autonomy have focused

on the groups freedom to defy the political communitys judgment as to what the common good

entails, whether that judgment is expressed as broadly applicable nondiscrimination laws,

limitations on the right to decline to provide certain morally contested goods or services, or

conditions attached to government funding. When a group claims a right of moral autonomy, the

claims encounter rougher political terrain than similar claims made by individuals. Because we

cannot easily place the groups asserted right of moral autonomy within the prevailing individual-

versus-state paradigm for analyzing claims of conscience, we tend to view groups as interlopers

masquerading as individuals. Groups do not have consciences; individuals do, and we struggle to

understand a group claim for moral autonomy as anything other than an artificial claim of

conscience. The pantheon of consciences heroes includes Thoreau, Gandhi, and King, not the

Boy Scouts, Walgreens, or Catholic Charities. Invoking a right of group conscience has enjoyed

7
Citizens United v. Federal Election Commn, 130 S. Ct. 876 (2010).
8
See, e.g., Two years after Citizens United, voters fed up with money in politics (Jan. 19, 2012)
(available at http://campaignmoney.org/files/DemCorpPCAFmemoFINAL.pdf) (reporting that
62 percent of Americans oppose the Citizens United decision).
2
limited traction in our political discourse. Indeed, we often believe that the best way to honor

individuals consciences is by empowering them to overcome obstacles presented by groups.

Contrast our legal traditions lionization of Daniel Seeger, who objected on moral grounds

to military service,9 with the cursory dismissal of the claims raised by Elane Photography, a

husband-and-wife photo agency in New Mexico that declined on moral grounds to shoot a same-

sex commitment ceremony. The agency was fined nearly $7000 for violating the states anti-

discrimination law.10 Part of the difference, no doubt, is the commercial nature of the enterprise,

and Ill turn to that aspect below. But part of the difference is the belief that, as long as the

husband and wife who comprise the photo agency are not coerced as individuals into engaging in

conduct that they believe is immoral, it does not matter if the corporate form that they have taken

is implicated in the objectionable conduct. As one noted civil rights scholar (and current member

of the Equal Employment Opportunity Commission) remarked, if you run a wedding photography

service, even if you dont like the fact that those two gays are getting married, youd better have

someone on your staff who will take those pictures.11

As I argue in a recent book,12 I believe that such responses derive from a superficial

understanding of conscience. I need to explain why in order to provide a broader context for my

reaction to John Inazus effort to reclaim the right of assembly.13 Suggesting that the owners of

9
United States v. Seeger, 380 U.S. 163, 187 (1965) (In light of his beliefs and the unquestioned
sincerity with which he held them, we think the Board, had it applied the test we propose today,
would have granted him the exemption [from military service].).
10
Vanessa Willock v. Elane Photography, HRD No. 06-12-20-0685 (N.M. Human Rights
Commn April 9, 2008), available at http://volokh.com/files/willockopinion.pdf.
11
Gay Rights Law Faces Legal, Religious Challenges, NPR Talk of the Nation (Jun. 16, 2008)
(comments of Chai Feldblum).
12
ROBERT K. VISCHER, CONSCIENCE AND THE COMMON GOOD: RECLAIMING THE SPACE
BETWEEN PERSON AND STATE (2010).
13
JOHN INAZU, LIBERTYS REFUGE: THE FORGOTTEN FREEDOM OF ASSEMBLY (2011).
3
Elane Photography can honor their consciences by keeping their moral beliefs out of the

marketplace ignores the external orientation of conscience: conscientia refers to moral belief

applied to conduct. Respecting conscience as an internalized set of beliefs does not authentically

respect conscience. Similarly short-sighted is the idea that the owners can avoid the problem by

hiring an employee who is willing to shoot events that they themselves deem morally

objectionable. This solves nothing unless we only see conscience in individualist terms, as though

its claims apply to its bearers own conduct and no further. In reality, conscience refers (literally)

to shared moral belief, and while not every claim of conscience will actually be shared, such

claims are, by their nature, susceptible to sharing. As such, the owners refusal to make hires that

would permit them to offer a full service photography agency is not an imperialist expansion of

consciences interior domain; it is a natural outgrowth of consciences relational dimension.

Institutions do not possess a conscience in any real sense, but they do embody distinct moral

identities that are shaped by their constituents consciences. When we preclude the cultivation and

maintenance of such institutional identities, it is not just moral pluralism that suffers; it is the cause

of conscience itself.

I believe that we need to recapture the relational dimension of conscience i.e., the notion

that the dictates of conscience are defined, articulated, and lived out in relationship with others.

My moral convictions have sources beyond myself, and my sense of self comes into relief through

interaction with others. When I live according to the dictates of my conscience, I communicate the

normative implications that flow from my perception of reality; my conscience makes truth claims

that possess authority over conduct my own and the conduct of those who share, or come to

share, my perception. Conscience connects a person to something bigger than herself, not only

because we form our moral convictions through interaction with the world around us, but also

4
because we invest those convictions with real-world authority in ways that are accessible to others.

This is the relational dimension of conscience.

As such, if our societys commitment to conscience is grounded solely in the language and

legal framework of individual rights, we are not fully committed to conscience. Consciences

substance and real-world implications are relational by their very nature. Though conscience is

intensely personal, the nature of conscience directs our gaze outward, to sources of formation, to

communities of discernment, and to venues for expression. When the state closes avenues by

which persons live out their core beliefs and admittedly, some avenues must be closed in the

interest of peaceful co-existence there is a cost to the continued vitality of conscience.

There are many examples we could use to explore this dynamic, but lets use one that

everyone has been talking about lately: the Obama administrations mandate on contraception

coverage. Pursuant to the Patient Protection and Affordable Care Act,14 the Department of Health

and Human Services (HHS) announced that it would require all employers offering health

insurance to cover certain types of preventive care at no additional cost to their employees.

Contraceptives and sterilizations are part of the mandate, including products considered by some to

be abortifacents. The mandate exempted religious employers, which were defined as an

employer who:

(1) has the inculcation of religious values as its purpose; (2) primarily employs
persons who share its religious tenets; (3) primarily serves persons who share its
religious tenets; and (4) is a non-profit organization [as defined elsewhere].15

14
Pub. L. 111-148, 124 Stat. 119.
15
See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive
Services Under the Patient Protection and Affordable Care Act, 45 CFR Part 147.
5
As widely commented, the ministry of Jesus himself would have not qualified as religious under

this definition.

What I am interested in for purposes of this discussion is how defenders of the mandate

have framed the conscience issue. The Obama administrations press secretary noted that this

approach does not signal any change at all in the administrations policy on conscience

protections.16 The implementing regulations addressed the conscience objection head-on,

explaining that:

Nothing in these final regulations precludes employers or others from expressing

their opposition, if any, to the use of contraceptives, requires anyone to use
contraceptives, or requires health care providers to prescribe contraceptives if
doing so is against their religious beliefs. These final regulations do not undermine
the important protections that exist under conscience clauses and other religious
exemptions in other areas of Federal law. Conscience protections will continue to
be respected and strongly enforced.17

Kathleen Sebelius, the HHS Secretary, used similar reasoning in defending the mandate,

emphasizing that the new rule does not preclude a Catholic doctor, for example, [from refusing]

to write a prescription for contraception, nor does it affect an individual woman's freedom to

decide not to use birth control.18 The liberty of conscience is satisfied, under these terms, as long

as the employer can tell its employees that the use of contraceptives is immoral, and as long as no

individual is forced to use contraceptives or prescribe them. In my view, this marginalizes both

the action-oriented pull of conscience, as well as its relational dimension.

16
Jay Carney, Press Briefing, Jan. 31, 2012.
17
45 CFR Part 147.
18
It's important to note. Kathleen Sebelius, Contraception rule respects religion, USA Today,
Feb. 5, 2012 http://www.usatoday.com/news/opinion/editorials/story/2012-02-05/Kathleen-
Sebelius-contraception-exemption/52975092/1
6
 The Obama administration did not go as far as some of the mandates defenders, though,

who insisted that overcoming the institutional obstacles to contraceptive coverage was necessary to

vindicate the conscience rights of employees. Eric Bugyis, for example, described the mandate as

a victory for all those who care about the religious liberty of individuals and the freedom of

individual conscience, which by definition is meant to be protected from the unwelcome coercion

by institutions to do things (or not do things) that are not relevant to the performance of ones

explicit duties to them, including ones employer.19 In the same vein, Vyckie Garrison accused

the religious employers of taking away womens freedom of conscience and giving it to the
20
Church. The liberty of conscience, in these terms, is not just about protecting the individual

from being coerced by the state to act in ways that she considers to be morally impermissible. The

liberty of conscience empowers the individual to enlist third parties in supporting her choice to

undertake actions that she deems morally permissible. Conscience as positive liberty for

individual consumers precludes conscience as negative liberty for group providers.

For the reasons set out earlier, I believe that these critics characterizations of the

conscience interests at stake, as well as the Obama administrations focus on the liberty of

individual providers, overlook the relational dimension of conscience. We should work to avoid

forcing an organization to choose between dropping health care coverage for its employees and

directly facilitating its employees use of a product that it deems immoral. My point today,

though, is not to argue the merits of the contraception mandate, but to briefly sketch the case for

robust but not unlimited autonomy for groups to stake out their own moral identities and

19
Eric Bugyis, Obama Defends Conscience, Commonweal
http://www.commonwealmagazine.org/blog/?p=16864 (Jan. 21, 2012)
20
Vyckie Garrison, Why the Birth Control Mandate is Not About Freedom of Conscience, Rh
Reality Check, Feb. 14, 2012 http://www.rhrealitycheck.org/article/2012/02/13/why-birth-
control-compromise-is-not-about-%E2%80%9Cfreedom-conscience%E2%80%9D
7
explore whether the current legal tools available to groups are sufficient to make that case. If they

are, then Inazus book is a well-written and interesting academic exercise. If the current tools are

not sufficient, though, then Inazus book may be the start of something big.

The political debate about the HHS mandate is playing out right now. It is entirely possible

that my argument about the relational dimension of conscience i.e., that groups are essential

venues through which individuals form, express, and live out the dictates of conscience will fail

to find traction politically. My argument might fail either as a general proposition or in a

particular context, such as the HHS mandate, where state interests may be judged by the public to

be more compelling than the employers interests. If voters take a pass on my invitation to

maintain space for religious institutions to decline to cover contraceptives, does the Constitution

provide backup protection?

One potential source of protection is the right of association under the First Amendment.

As Inazu so ably explains in his book, the right of association does not help unless the group is

found by the courts to qualify as an intimate or expressive association. In Roberts v. Jaycees, the

Court explained that special protection for intimate associations is warranted because these

personal bonds have played a critical role in the culture and traditions of the Nation by cultivating

and transmitting shared ideals and beliefs, thereby fostering diversity and act[ing] as critical

buffers between the individual and the power of the State.21 Further, protecting these

relationships from which individuals draw much of their emotional enrichment from close ties

with others will thereby safeguard the ability to define one's identity.22

In the hypothetical Roberts dissent that he includes in his book, Inazu points out that the

distinction between intimate and nonintimate associations is unconvincing because all of the

21
Roberts v. Jaycees, 468 U.S. 609, 619 (1984).
22
Id.
8
values, benefits, and attributes that the majority assigns to intimate associations are equally

applicable to many if not most nonintimate associations.23 Nevertheless, courts are not going to

find that Catholic Charities, St. Lukes Hospital, Ave Maria University or the other employers

objecting to the mandate qualify as intimate associations.

Gaining status as an expressive association might also prove difficult, though of course all

of the associations I just mentioned are expressive as that term is commonly understood. Inazu

correctly notes that communicative possibility exists in joining , excluding, gathering,

proclaiming, engaging, or not engaging, and that [o]nce a relational association is stipulated

between two or more people, any act by those people when consciously undertaken as members

of the association has expressive potential reflective of that association.24 Under the current

interpretation of the right of association, though, even organizations that undeniably express

messages to some constituents as part of their animating purpose e.g., Catholic colleges or

charitable organizations may be hard-pressed to persuade a court that messages to employees

about contraceptive use falls within the scope of that expressive function. The district court in

Christian Legal Society v. Martinez found that the student group failed to submit any evidence

demonstrating that teaching certain values to other students is part of the organizations mission or

purpose, or that it seeks to do so by example, such that the mere presence of someone who does

not fully comply with the prescribed code of conduct would force CLS to send a message contrary

to its mission.25 Just as, in the courts view, the presence of a non-complying member would not,

by their presence alone . . . impair CLSs ability to convey its beliefs, courts would likely find

23
Inazu at 180.
24
Inazu 161.
25
Christian Legal Society v. Kane, No. C 04-04484 JSW, 2006 WL 997217, at *22 (N.D. Cal.
May 19, 2006).
9
that complying with a legal requirement to cover contraceptives would not impair the Catholic

colleges, hospitals, or charitys ability to convey their beliefs.

The Free Exercise Clause may be similarly unavailing in light of Employment Division v.

Smith, which upheld neutral laws of general applicability even if they burden religious exercise.

The implementing regulations for the HHS mandate clearly were written with Smith in mind, as

they explained that [t]he contraceptive coverage requirement is generally applicable and designed

to serve the compelling public health and gender equity goals described above, and is in no way

specially targeted at religion or religious practices.26 Though the Supreme Courts recent 9-0

ruling in Hosanna-Tabor brought new attention to the Free Exercise Clause, the ministerial

exemption affirmed by that case applies only to employment decisions in the (still murky) category

of ministers. Outside that context, the Free Exercise Clause has been famously eviscerated by

Smith.27

All of this goes to establishing the timeliness and importance of Inazus book: does the

right of assembly he prescribes offer the promise of protection for group autonomy that is currently

26
Regs. The federal Religious Freedom Restoration Act (RFRA) may offer a viable cause of
action in this context, though there is a split of opinion on that question. 107 Stat. 1488, 42
U.S.C. 2000bb et seq. In any event, my focus here is whether the Constitution provides a
remedy in the event that political support for associational autonomy in this context proves
unsustainable.
27
See, e.g., Kent Greenawalt, Religion and the Rehnquist Court, 99 Nw. U. L. Rev. 145, 157
(2004) (exploring what is left of the eviscerated Free Exercise Clause); Winnifred Fallers
Sullivan, Religious Freedom and the Rule of Law: Exporting Modernity in a Postmodern
World?, 22 Miss. C. L. Rev. 173 (2003) ([T]he free exercise clause has simply been eviscerated
. . . .). See also Rodney J. Blackman, Showing the Fly the Way Out of the Fly-Bottle: Making
Sense of the First Amendment Religion Clauses, 42 U. Kan. L. Rev. 285, 407 (1994) (arguing
that further application of the reasoning in recent Supreme Court cases would render the Free
Exercise Clause virtually judicially dead for minority religious practices); Michael W.
McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 140 (1992) (arguing that
the neutrality principle incorrectly places the freedom of citizens to exercise their faith . . . [at
the mercy of the] vagaries of democratic politics . . . .).

10
lacking in constitutional interpretation? I think it does, at least under Inazus understanding of the

right as encompassing much more than a right of petition.28 He defines the right of assembly as:

[A] presumptive right of individuals to form and participate in peaceable, noncommercial

groups. This right is rebuttable when there is a compelling reason for thinking that the
justifications for protecting assembly do not apply (as when the group prospers under
monopolistic or near-monopolistic conditions).29

The scenarios through which Inazu works out the right of assembly tend to focus on the

right to exclude, which is understandable given recent Supreme Court case law and the fact that the

most pressing challenge to group autonomy is an expanding array of nondiscrimination laws. But

given the values that Inazu locates as lying at the heart of the right of assembly, the right would

also include a groups practices beyond questions of membership. On this front, Inazus emphasis

on the value of dissent is instructive. He sees pluralism and dissent as being among our

nations deepest cultural commitments, noting that [d]issenting practices confront an ever-

present challenge by the state to domesticate their destabilizing tendencies.30 Dissent is not an

uncontested American value, though, as [p]owerful countervailing visions of stability and

consensus from mid-twentieth-century pluralism and Rawlsian liberalism have sought to bind our

country together at the cost of silencing the margins of dissent.31 While not every group dissents,

Inazu contends that the groups that shape the boundaries of autonomy are those that reject

consensus norms.32

It is the protection of a groups dissent function that makes the right of assembly so

potentially valuable, and such an obvious fit for religious groups that dissent from the

28
Inazu at 6 ([T]he text of the First Amendment and the corresponding debates over the Bill of
Rights suggest that the framers understood assembly to encompass more than petition.)
29
Inazu at 14.
30
Inazu at 156.
31
Inazu at 152.
32
Inazu at 156.
11
governments view of contraception as a core element of health care. By championing a groups

right to live out its values, even if the group does not set out with the explicit purpose of

transmitting those values, Inazus retrieval of the right of assembly provides a new dimension to

our ongoing struggle over the role of groups in our legal framework. He has not purported to

provide the final and conclusive word on the right of assemblys potential contribution or

operation, but he has initiated an important and overdue conversation. In keeping with that theme,

let me continue the conversation by asking three questions that were prompted by his analysis.

First, why is the right of assembly limited to noncommercial groups? Even in the debate

over the HHS contraception mandate, critics have wondered why for-profit employers or insurers

are presumed to fall outside the scope of any prudent exemption. In the context of political speech,

courts have refused to draw lines between non-profit and for-profit organizations. In Citizens

United, the Supreme Court held that political speech does not lose First Amendment protection

simply because its source is a corporation.33 The Courts resistance to excluding corporations

from free speech protection is functional: the reasons we value free speech apply to individuals,

non-profit groups, and for-profit corporations. As the Court recognized twenty-five years before

Citizens United, Corporations and other associations, like individuals, contribute to the

discussion, debate, and the dissemination of information and ideas that the First Amendment seeks

to foster.34

By the same token, why is it not the case that corporations and other associations, like

individuals, contribute to values that the right of assembly seeks to foster? We need to do more

than draw distinctions in form, for the Court has prohibited the government from banning

33
Citizens United v. Federal Election Comn 130 S. Ct. 876, 900 (2010) (internal quotation
marks omitted).
34
Pacific Gas & Elec. Co. v. Public Util. Commn of Cal., 475 U.S. 1, 8 (1986) (plurality
opinion) (internal quotation marks omitted).
12
political speech simply because the speaker is an association that has taken the corporate form.35

While a formal distinction is easy, a functional distinction is more elusive. Whatever value the

assemblies of the ACLU, Habitat for Humanity, and the PTA contribute by their very existence, a

for-profit corporation that defies prevailing moral wisdom or stakes out a religiously inspired

dissenting position contributes the same kind of value. Some of the most contentious battles

between the government and groups attempting to cultivate distinct moral identities have involved

for-profit corporations, ranging from Wal-Mart,36 to law firms,37 to dating services,38 to

pharmacies.39

Commercial speech has traditionally been afforded less protection than non-commercial

speech, but there is some doubt whether lesser protection for commercial speech makes sense,40

and the rationales usually offered do not necessarily apply to assembly. Charles Fischette, for

35
Citizens United, 130 S. Ct. at 904.
36
See Peter Lattman, Wal-Mart Sued Over Not Stocking Morning-After Pill, Wall Street Journal
Law Blog, Feb. 2, 2006, available at http://blogs.wsj.com/law/2006/02/02/wal-mart-sued-over-
not-stocking-morning-after-pill/
37
See Editorial, Unveiled Threats, Wash. Post, Jan. 12, 2007 (responding to Defense Department
official who gave interview in which he suggested that clients should boycott law firms that
defended Guanatanamo Bay detainees).
38
See Beth DeFalco, eHarmony agrees to provide same-sex matches, msnbc.com, Nov. 20, 2008
(Online dating service eHarmony said Wednesday it will launch a new Web site which caters to
same-sex singles as part of a discrimination settlement with New Jerseys civil rights division.),
available at http://www.msnbc.msn.com/id/27821393/ns/technology_and_science-
tech_and_gadgets/t/eharmony-agrees-provide-same-sex-matches/.
39
See Gretchen Ruethling, Illinois Pharmacist Sues Over Contraceptive Rule, N.Y. Times, Jun.
10, 2005 (A pharmacist in Illinois has filed a lawsuit challenging an order by Gov. Rod R.
Blagojevich requiring pharmacies to dispense birth control and emergency contraception without
delay.).
40
The commercial speech exception has continually eluded theoretical justification. C. Edwin
Baker, Commercial Speech: A Problem in the Theory of Freedom, 62 Iowa L. Rev. 1, 1 (1976).
13
example, argues that commercial speech is generally less susceptible to chilling effects because of

the economic motivations supporting it.41 Similarly, C. Edwin Baker asserts that:

Ideally, the content, the form, and particularly the intensity and direction of the
propagation of commercial speech is determined by calculating its positive
contribution to profits. A standard given and enforced by the structure of the
competitive market rather than the speakers value choice or prejudice lies at the
source of commercial speech.42
As such, [t]he domination of profit, a structurally required standard, breaks the connection

between speech and any vision, or attitude, or value of the individual or group engaged in

advocacy, and thus the content and form of commercial speech cannot be attributed to individual

value allegiances.43

This just does not do justice to the reality of the corporate landscape.44 Whether its a for-

profit company taking a stand on animal testing, climate change, same-sex partner benefits,

refusals to stock the morning after pill, or countless other morally contested issues, there is

regularly a connection between corporate practices and an underlying vision, attitude or value.

Further, the domination of profit is not a structurally required standard. We tend to define the

corporations sole purpose as profit maximization, but that may reflect an overly narrow

understanding of shareholders interests. In terms of fostering loyalty among shareholders,

customers, and employees, prudent managers may be led to make non-profit-maximizing decisions

that support the corporations moral identity. Lyman Johnson, critiquing the law-and-economics

41
Charles Fischette, A New Architecture of Commercial Speech Law, 31 Harv. J. L & Pub.
Poly 663, 667 (2008).
42
C. Edwin Baker, Commercial Speech: A Problem in the Theory of Freedom, 62 Iowa L. Rev.
1, 14 (1976).
43
Id. at 17.
44
See Robert K. Vischer Corporate Identity and Moral Pluralism: Reclaiming the Relational
Dimension of Conscience, 5 J. OF CATHOLIC SOCIAL THOUGHT 323 (2008), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028881.
14
movement, observes that [t]he dignity, inherent worth, and enormous energy and initiative of the

individual are rightly valued, but to conceive of human existence solely as a vast collection of

individuals is to fail to explain many of our existing social arrangements and interactions and to

provide no solid moral foundation for genuinely selfless behavior.45 Profit maximization is not a

legal requirement for corporations, publicly traded or not.46

Enron famously pursued profit to the exclusion of longer-range interests. But not every

company is Enron. Interstate Batteries mission statement is [t]o glorify God as we supply our

customers worldwide with top quality, value-priced batteries, related electrical power-source

products, and distribution services.47 The fast food chain Chick-fil-A sacrifices potential profit by

closing all of its stores on Sundays.48 At ServiceMaster, a statute of Jesus washing his disciples

feet stands outside the company headquarters, and no one earns more than twelve times the amount

earned by the lowest-paid employee.49 After a fire burned down its mill, the Malden Mills CEO

45
Johnson, Individual and Collective Sovereignty in the Corporate Enterprise, 92
COLUM. L. REV. 2215, 2248 (1992).
46
Even scholars who take a contractarian approach to the corporation leave room for
objectives beyond profit maximization:

An approach that emphasizes the contractual nature of a corporation removes

from the field of interesting questions one that has plagued many writers: what is
the goal of the corporation? Is it profit (and for whom)? Social welfare more
broadly defined? . . . Our response to such questions is: Who cares? If the New
York Times is formed to publish a newspaper first and make a profit second, no
one should be allowed to object. Those who came in at the beginning actually
consented, and those who came in later bought stock at a price reflecting the
corporations tempered commitment to a profit objective. . . . Corporate ventures
may select their preferred constituencies.

Frank H. Easterbrook & Daniel R. Fischel, The Corporate Contract, 89 COLUM. L. REV. 1416
(1989).
47
See Victor Godinez, Some Corporate Execs Follow Spiritual Beliefs, Dallas Morning News,
Dec. 25, 2001.
48
See Faith in the Workplace, Religion & Ethics Newsweekly, Jan. 28, 2005.
49
See Marc Gunther, God & Business, Fortune, July 9, 2001.
15
cited his Jewish faith as the reason for keeping his employees on the payroll and under the

companys benefits coverage even though they had no work to do.50

If a for-profit corporation dissents from the moral norms embodied in a particular law, and

we are confident that the dissent is not solely related to the avoidance of an economic burden, why

shouldnt we want to protect its right of assembly? In Roberts, Justice OConnors concurring

opinion highlighted the fact that the Jaycees promote commercial opportunities to its members,

reasoning that groups that are engaged primarily in commercial activities warrant less protection

from government intrusion than groups engaged primarily in activities covered by the First

Amendment.51 Inazu recognizes that this posits a false dichotomy between commercial and

express[ive] associations, as some commercial associations are expressive.52

So why introduce the distinction into the right of assembly? Inazu might want to maintain

a commercial / noncommercial distinction in order to make the right of assembly more palatable as

a matter of constitutional interpretation. Giving Wal-Mart a constitutional right to ignore legal

mandates though that right would not enjoy blanket immunity from countervailing state interests,

I assume may understandably be a bridge too far.

The political sensitivities raised by the potential expansiveness of the right of assembly

leads to a second question: are Inazus concerns best addressed through the Constitution, or are his

questions more properly addressed to political actors? More precisely, does the nature of the

inquiry contemplated by Inazu fit more comfortably within the contours of a political resolution

50
See Timothy L. Fort, Business as Mediating Institution, 6 Bus. Ethics Q. 149 (1996).
51
Roberts v. U.S. Jaycees, 468 U.S. 609, 639 (1984) (OConnor, J., concurring) (The State of
Minnesota has a legitimate interest in ensuring nondiscriminatory access to the commercial
opportunity presented by membership in the Jaycees.).
52
Inazu at 135.
16
than a judicial one? Under his framework, courts need to inquire into a groups peaceability and

commercial nature, among other criteria. My hesitation does not stem from the fact that Inazu

proposes a highly fact-intensive determination of whether the right of assembly should overcome

the opposing state interests after all, courts are often better at fact-finding than legislatures are.

Its the nature of the facts that lie at the heart of the inquiry. Inazu explains:

In my view, we are better off with a contextual analysis that allows courts to
examine how power operates on the ground. This approach would ask courts to
evaluate challenges to the exercise of the right of assembly in the specific contexts
in which those assemblies exist.53

Pursuant to this standard, Inazu suggests that the state is justified in overcoming the right of

assembly when a group has a monopoly or near-monopoly. That makes sense based on my

assumption that Inazu is concerned with maintaining access to goods or services deemed essential

by the political community. The states intervention should be triggered by demonstrable access

problems, not simply by abstract notions of customer rights. Let me suggest, though, that ensuring

access may be facilitated more effectively by the states professional licensing function, rather than

by case-by-case adjudication of a constitutional right. In the pharmacy context, for example, the

state could be legislatively empowered to declare a market failure with respect to particular

pharmaceutical products and to require the provision of those pharmaceuticals as a condition of

licensing in a given geographic area.

To the extent that Inazu is limiting the right of assembly to non-commercial enterprises, its

not entirely clear why monopolistic status is important to the inquiry unless he has in mind

charitable organizations that may be the only provider of key social services in a given community.

53
Inazu at 15.
17
Even in that context, though, the state needs to proceed carefully, as the alternative to a provider

who refuses to provide all the services deemed important by the state may be no provider at all.

It is easier to make such context-driven judgments legislatively than judicially, but perhaps,

in light of the important values served by the continued viability of even unpopular groups, we

need a constitutional right of assembly to keep a proverbial thumb on the scale. Underlying Inazus

exhaustive research and careful tracing of the right of assemblys demise is a heartfelt concern for

the ability of groups to flourish in a legal and political culture that often appears inescapably

oriented toward individualism. Americans are quick to resist state encroachments on an

individuals right to define ones own concept of existence, of meaning, of the universe, and of

the mystery of human life,54 and non-state associations may get painted with the same broad

brush as obstacles to the full realization of an individuals autonomy. Unless a particular group

serves a function deemed worthy by the political community, the group may be increasingly hard-

pressed to resist state encroachments on its own autonomy.

My tendency to favor political resolutions in debates involving groups may be overlooking

the reason why the right of assembly was included in the First Amendments text groups are

unlikely to get a fair shake politically in situations where we need them most. In this regard, the

right of assembly provides a degree of countermajoritarian protection for dissent in a way that the

artificially narrow expressive and intimate rights of association do not.

This leads to my third and final question. Inazu makes a powerful case that the right of

association, as presently construed by courts, is inadequate to the task. But is it beyond

54
Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).
18
reclamation? If interpreted differently, would the right of association prove capable of carrying the

burden that Inazu lays on the right of assembly?

My instinct tells me that Inazu is right, that we actually need to look beyond the right of

association for more robust protection of associational rights. The right of assembly is a

potentially more powerful resource, if for no other reason than the fact that it is found in the text of

the Constitution. (Witness the ongoing battles over the right to privacy.) Further, the right of

association has origins in natural law reasoning that have grown increasingly contested. Seen in

this light, it may not be that courts have shifted on the right of association, but that the

epistemological foundations on which the right of association was originally based have shifted on

the courts.

Consider the important precursors to the right of intimate association. In Meyer v.

Nebraska,55 the Court struck down a state law banning the teaching of foreign languages to

students before they graduated from eighth grade, reasoning that there was insufficient justification

for state interference with the opportunities of pupils to acquire knowledge, and with the power of

parents to control the education of their own.56 In Pierce v. Society of Sisters,57 the Court held

that the state could not require parents to send their children to public schools, for [t]he

fundamental theory of liberty upon which all governments in this Union repose excludes any

general power of the state to standardize its children by forcing them to accept instruction from

public teachers only.58

55
262 U.S. 390 (1923).
56
Id. at 401.
57
268 U.S. 510 (1925).
58
Id. at 535.
19
 Taken together, these cases establish the right of parents to direct the education of their

children. For our current purposes, the more salient point is that the decisions are premised on the

recognition that the parent-child association is not a creation of the law, and that the parental care-

giving authority on which the relationship rests does not represent a delegation of state authority.

These are natural law cases. The Supreme Court deferred to a pre-legal sovereignty within the

family that stems from the natural fact of care-giving relationships and the associational autonomy

on which their function depends.

Today criticism of these cases abounds, and the holdings have been narrowly construed,

even on issues within the education arena.59 Meyer and Pierce are accused by Barbara Woodhouse

of being animated by a conservative attachment to the patriarchal family, to a class-stratified

society, and to a parents private property rights in his children and their labor, reflecting a

narrow, tradition-bound vision of the child as essentially private property.60 And Meyer in

particular is seen as having announced a dangerous form of liberty, the right to control another

human being.61 The legal recognition of parental authority in such cases generally underscores

the bias towards adults possessive individualism, which objectifies children and places

physical control and possession of the children, rather than demonstrated service or shared concern

for their well-being, at the center of controversy.62

59
See, e.g., Fields v. Palmdale School Dist., 447 F.3d 1187, 1191 (9th Cir. 2006) ([W]e affirm
that the Meyer-Pierce due process rights of parents to make decisions regarding their childrens
education does not entitle parents to enjoin school boards from providing information the boards
determine to be appropriate in connection with the performance of their educational functions . . .
.).
60
Barbara Bennett Woodhouse, Who Owns the Child?: Meyer and Pierce and the Child as
Property, 33 WM. & MARY L. REV. 995, 997 (1992).
61
Id. at 1001.
62
Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents
Rights, 14 Cardozo L. Rev. 1747, 1811 (1993).
20
 In another landmark right of association case, Griswold v. Connecticut, the Court struck

down a state ban on the use of contraceptives.63 Because the prohibition applied to married

couples, the Court ruled that it violated a right of privacy older than the Bill of Rights older than

our political parties, older than our school system.64 Marriage, the Court observed, is:

[A] coming together for better or for worse, hopefully enduring, and intimate to the
degree of being sacred. It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not commercial or social
projects. Yet it is an association for as noble a purpose as any involved in our prior
decisions.
The ancient lineage of marital associations kept its constitutional relevance for only a few

years. In Eisenstadt v. Baird, the Court struck down a Massachusetts ban on the distribution of

contraceptives even though the statute exempted married couples. The court reasoned that, while

the right of privacy in Griswold inhered in the marital relationship, the married couple is not an

independent entity with a mind and heart of its own, but an association of two individuals each

with a separate intellectual and emotional makeup. As such, [i]f the right of privacy means

anything, it is the right of the individual, married or single, to be free from unwarranted

governmental intrusion into matters so fundamentally affecting a person as the decision whether to

bear or beget a child.65 Over the intervening decades, courts have become even less inclined to

defer to marriage as an ontological reality that lies beyond the laws reach.66

63
Griswold also identified Meyer and Pierce as being based on the right of association. See
Griswold, 381 U.S. at 482.
64
Griswold v. Connecticut, 381 U.S. 479 (1965).
65
Eisenstadt v. Baird, 405 U.S. 438 (1972). See also Inazu at 128 (quoting Jeff Powell) (In
Eisenstadt, Brennans reading of Griswold turned Douglass reasoning on its head and
signaled the identification of a radically individualistic liberalism as the moral content of
American constitutionalism.).

21
 These developments within the jurisprudence of intimate associations do not call into

question the relatively unbroken line of cases upholding the right of association for groups that are

more obviously expressive,67 though if the group has not staked its expressive identity on the point

under dispute, even that dimension of the right seems less than secure. 68 More broadly though, if

the right of association has limited power to protect the autonomy of natural relationships such as

the one between parent and child, or longstanding social institutions such as marriage, it takes little

imagination to see that the autonomy of other social groups may be even more precarious. If we

are less prepared to give normative weight to the natural existence of given social relationships,

we may be more inclined to condition the relationships legitimacy on its reflection of certain

democratic attributes or civic virtues.

Though Inazu does not trace the right of associations vulnerability back to a loss of

confidence in any natural moral order, he is keenly aware of the conditional nature of the states

tolerance of groups. He explains:

The thin protections of the right of association are underwritten by a political theory
of consensus liberalism, which purports to be procedural or neutral but whose
espoused tolerance extends only to groups that endorse the fundamental
assumptions of liberal democratic theory.69

66
Goodridge v. Dept of Public Health, 798 N.E.2d 941, 954 (Mass. 2003) (Simply put, the
government creates civil marriage . . . . [T]here are three partners to every civil marriage: two
willing spouses and an approving State.).
67
See e.g., NAACP v. Button, 371 U.S. 415 (1963).
68
See e.g., Boy Scouts v. Dale, 530 U.S. 640, 697 (2000) (finding it farfetched to assert that
Dales open declaration of his homosexuality, reported in a local newspaper, will effectively
force [the Boy Scouts] to send a message to anyone simply because it allows Dale to be an
Assistant Scoutmaster) (Stevens, J., dissenting on behalf of himself and three other justices).
69
Inazu at 11.
22
Nancy Rosenblum famously calls this the logic of congruence,70 and the idea is captured

insightfully by Inazus observation that assemblies as forms of expression were supplanted by

associations as means of expression.71

As we grow more suspicious that natural rights can be used to mask injustices inherent in

the status quo, we are less likely to grant blanket privileges to any particular category of

relationships. The freedom becomes conditioned on the cultivation of certain democratic attributes

or civic virtues within or through the relationship. Laura Rosenbury, for example, concedes the

legitimacy of parental authority within the home, but sees a greater state role in ensuring that

children are exposed to a variety of influences outside the home. Rather than viewing the

formative social spaces between home and school as additional venues through which parents can

raise their children consistently with the parents priorities and values, she sees horizon-expanding

functions in the Boy Scouts, sports leagues, and other civic or religious activities. Rosenbury

laments the fact that pluralism only exists between families. She explains:

Our society is pluralistic because many types of families are permitted to exist
largely free from state indoctrination. In contrast, pluralism rarely exists within
families. Children are generally exposed to just one belief system within the
family, or at most two. Therefore, although children may not be standardized by
the state, they often are standardized within their own families. Pluralism may exist
on a broad, societal level, but children rarely experience pluralism on a micro level,
within their own families.72
We should be hesitant to cede childrearing between home and school to the control of parents and

their surrogates, she contends, because we stand to lose [i]mportant opportunities to expose

70
The logic of congruence requires that not only political institutions and public
accommodations but also voluntary social groups function as mini-liberal democracies, with a
view toward cultivating and sustaining self-respect. This requires that the internal life and
organization of associations mirror liberal democratic principles and practices. Nancy L.
Rosenblum, Membership and Morals: The Personal Uses of Pluralism in America 36 (1998).
71
Inazu at 65.
72
Laura Rosenbury, Between Home and School, 155 U. PA. L. REV. 833, 893 (2007).
23
children to the diversity of the broader society.73 The law has a role to play in mitigating the

familys impact on the child by ensuring that she is exposed to diverse moral influences. My point

is not that Rosenbury is wrong; my point is that her analysis reflects a broader hesitation to

extrapolate constitutional oughts from the is of natural relationships that are central to the

human experience. In fact, on a range of issues beyond physical abuse and neglect, we may be

more willing to use state authority to bring the is closer to a state-defined ought. If parents do

not agree with the political communitys judgment that a commitment to individual autonomy

means that a child should be able to achieve a critical distance from the parents worldview, the

political community may owe less deference to the familys choices. The liberty of association is

by no means eradicated in these contexts, but we may be more willing to attach strings to its

exercise.

We can see a similar dynamic operating in a variety of todays debates involving non-

family groups, including the battle over the HHS contraception mandate. Consider a statistic cited

repeatedly by the mandates defenders that 98% of Catholic women have used contraception.74

Putting aside the questionable accuracy of the statement,75 how should this statistic play into our

debate about the mandate? If the vast majority of a groups members defy the groups teaching on

a particular issue but have nevertheless chosen to remain members does the political

community owe less deference to the group on that issue? If the answer is yes, then the political

73
Id. at 894-895.
74
Cecilia Munoz, Director of White House Domestic Policy Council, Health Reform, Preventive
Services, and Religious Institutions, The White House Blog, Feb. 1, 2012 (According to a study
by the Guttmacher Institute, most women, including 98 percent of Catholic women, have used
contraception.), available at http://www.whitehouse.gov/blog/2012/02/01/health-reform-
preventive-services-and-religious-institutions.
75
See Glenn Kessler, The claim that 98 percent of Catholic women use contraception: a media
foul, Wash. Post, Feb. 17, 2012, available at http://www.washingtonpost.com/blogs/fact-
checker/post/the-claim-that-98-percent-of-catholic-women-use-contraception-a-media-
foul/2012/02/16/gIQAkPeqIR_blog.html.
24
community is projecting some significant democratic assumptions onto the group. The Catholic

Church is no longer an alternative form of expression; it is a means of expressing its members

views in the same democratic form as other associations worthy of autonomy. In part because

some of the bedrock right of association cases are grounded in natural order arguments that are

increasingly contested, a textual anchor may be needed. Inazu has provided just that, and I look

forward to seeing how the conversation unfolds over the months and years to come.

25