Private groups wishing to protect their membership rolls from incursion by the federal government's enforcement of anti-discrimination statutes should look to the First Amendment's freedom of assembly clause as the basis for their defense, according to one Washington University in St. Louis School of Law professor.
Promoting his new book, "Liberty's Refuge: The Forgotten Freedom of Assembly" with a panel hosted Tuesday by the American Enterprise Institute and the Federalist Society, John Inazu argued that groups should employ the assembly clause to defend against discrimination charges first and foremost because "unlike association, [assembly] actually shows up in the text of the Constitution."
By "association," Inazu referred to a string of 20th century cases in which judges ruled that the government cannot force private groups to accept members who do not adhere to the organization's beliefs. These cases, for the most part, cited the freedom of association, an idea that appears nowhere in the text of the Constitution.
Inazu said that the framers of the Constitution had a much broader application than just petition in mind when drafting the assembly clause, which he said affords citizens a "presumptive right" to gather in peaceful groups of their own design.
David Bernstein of the George Mason University School of Law was skeptical that this tactic could fully protect organizations from discrimination claims, pointing to the decision in Roberts v. United States Jaycees, which he deemed a "constitutional atrocity." The organization would likely still have been forced to accept women members even if it had relied upon the freedom of assembly, he said, as several aspects of the group's composition prevented the court from applying First Amendment protections.
University of Virginia School of Law professor Douglas Laycock did not subscribe to Inazu's claims in the book that the freedom of assembly had been used for 200 years only to be abandoned in the last century. In his view, cases that chose to argue on the grounds of association did so because the issues at hand revolved around the dynamics of how the group functioned and not the kind of physical assemblies previously considered by the courts.
"I think we have a new set of problems those cases did not deal with," Laycock said.