This essay attempts to reclaim the freedom of expressive association from both its harshest critics and its most ardent libertarian cheerleaders, arguing that The Boy Scouts of America v. Dale will not have the revolutionary consequences either camp predicts.
Part I sketches the significance of the freedom of association to the protection of dissenting opinion, with an emphasis on gay experience.
Part II notes the increasing conflict between the freedom of expressive association and the expanding reach of antidiscrimination law. The challenge is to draw a line between them that will preserve a large realm for group expression and organization while allowing the state to promote its equality objectives in the most compelling contexts. The approach to this problem suggested by the dissenters in Dale, inviting courts to focus closely on a group's message, is inherently suspect under First Amendment principles. The Dale dissenters' approach would likely be systematically unfavorable to unpopular groups, including gay civil rights groups. A message-based approach also misses much of the subtlety and richness of speech in general and of group speech in particular.
Part III suggests a tripartite approach that treats associations differently depending on the predominance of protected expression in the association's activities. This tripartite approach is a way to reconcile the claim for associational freedom and the need for equality.
Finally, as an original matter, what the Supreme Court now calls the freedom of expressive association might have been conceived as an important liberty interest in itself that is foundational of other liberties. There can be little question associations have played a central role in the political and cultural life of the nation, a role whose significance the word "expressive" hardly captures. Yet the Supreme Court has taken another path, mooring this freedom in the First Amendment. This article works within that framework, rather than seeking a broader grounding for associational rights, recognizing that the Court may effectively have reached the same result by expansively defining associational freedom.
Minnesota Law Review
Dale Carpenter, Expressive Association and Anti-Discrimination Law after Dale: A Tripartite Approach, 85 Minn. L. Rev. 1515 (2001)