Episode 21 Transcript
John:
I'm here with Luke Sheehan assistant professor of political science at Duquesne University and non-resident scholar at the program for research on religion and urban civil society at the University of Pennsylvania. He completed his PhD at the Catholic University of America, and Luke has recently written a book entitled Why Associations Matter: The Case for First Amendment Pluralism.
Luke, thank you so much for being here with me today.
Luke:
Thank you.
John:
And why did you write this book?
Luke:
I wrote this book because I saw that in Supreme Court case law and in the broader discussion that went on, on freedom of association, there was a fundamental misunderstanding on what associations are and what it would take to protect them. So that is to allow the associations to be free. There's been some really good work recently on the first amendment and the assembly clause, chiefly coming from John Inazu. And he pointed out that the Supreme Court has ignored this clause for decades now, but that the clause would protect groups that aren't expressive and perhaps aren't even religious, but are social groups in some way. And I took off from that there's this clause that specifically protects what we would call “associations” and tried to understand what they are, what their components are, what it would take, what sort of properties would have to be present in a jurisprudence of association in order to protect them adequately in Supreme Court case law.
John:
So what would threaten associations?
Luke:
One of the main ones is their membership. So to have an association, one of the chief things you have to be able to do is to exclude people who would disrupt the purpose of your group. So we can think of an association as kind of revolving around two fundamental issues, a dogma of some sort (and I'll explain what I mean by that) and a function. By dogma, I mean a belief, some central believer beliefs at the heart of the organization, and this is true of all organizations. And usually the dogma can be formulated as something like “Something is true” or “Something is good.” So for a chess club, for example, the dogma at the heart of a chess club is that playing chess is good and worthwhile, and the function of the group is to organize and facilitate the playing chess. So you have a dogma of some sort and then the function that the group carries out.
Now, in order to carry out that function, the chess club has to be able to exclude persons who, for one reason or another, would be disruptive to the carrying out of that function. And the best people to determine who's going to be disruptive to that would be the group itself.
So some groups would be very hardnosed about, and stringent about, the practices of the group. Some religious groups are like this. They want somebody who not only claims to be a Roman Catholic, but attends mass every day. And some groups think that, you know, baptism and confirmation are pretty close and they're just happier there.
It would really depend upon the group, and that group would come up with its own terms, with some formal and some informal. So the group itself should be able to determine what that is. Now, the Supreme Court has gotten, has formulated, the right of groups to exclude on the basis of expressive association.
So instead of grounding the right of association in the assembly clause, as John Inazu would have them do and as I would have them do, they founded it in the speech clause. So what they would say is the individual right to free speech, part of that right, is your right to join a group that expresses those views, and you express your view by the group you join. The group can exclude based upon its expressive mission. Now for a number of groups, this might work out okay. But some groups aren't expressive, so that is, you wouldn't know from the group that actually have some expressive purpose.
Some groups are very expressive. You can do political groups, or groups that would, I would say, a gay-rights group. What is it? It's advocating a particular position. And so it's very clearly expressive. Other groups, though, aren't clearly expressive. The chess club I just mentioned—it's not expressive. And there's a number of groups that are like that, even a number of religious groups that aren't churches. And the Supreme Court’s been very protective of religious organizations. But they're not expressive either. The purpose of the group is something internal. So you might think of a Bible study being led by a lay person. It's not entirely clear, under Supreme Court jurisprudence, whether or not that would be protected. In fact, federal courts have in a number of occasions ruled against the group, in certain contexts, in the context of a public school or the context of public universities. And so it's not entirely clear that that's going to be essentially protected.
John:
In order to make your case, you need to give us some kind of theory of what an association is, and to do that, you engage Robert Nisbet.
Luke:
Yes.
John:
Who is Robert Nisbet, and why do you draw so heavily on his work?
Luke:
So Robert Nisbet was one of the most prominent social thinkers of the 20th century. He was widely recognized as one of the top academics of his generation. He gave the Jefferson lecture in 1987. He held prominent positions at the University of California at Berkeley, and the University of California, Riverside, where he was the founding Dean. And he held the Albert Schweitzer chair at Columbia at the end of his career. He wrote a number of books that were very famous. His discipline was sociology, but he was interdisciplinary in the work that he did. So he was widely recognized in political science as well as sociology for his work.
His most famous book is The Quest for Community. It was his first book, published in 1953. There he argues that the primary drive of human beings is for community, and that conditions in the modern world has made the formation of communities, a meaningful community, difficult. And he names the primary corporate is as the exercise of political power and under the growth of the modern state.
So the state has grown, for the last 500 years, taking over most of the functions of other associations, religion, the kinship group, the local community, all of that now resides in the political state. Along with that is that the loyalties that individuals would give to those other associations have been transferred to the political state. So, whereas a one would have a gain in function from their kinship group, that would give someone political and economic ties, and one would therefore have a lot of loyalty to their own kinship group, one would gain political and economic social status and ties from one's local community or from one's religious group, and so on, now one gets our primary economic rights come from the state. In terms of employment and in terms of welfare, insurance, and that sort of thing, our political rights are tied up entirely in the state, and primarily at the federal level. The state and local governments increasingly being less and less independent, more and more on the federal government.
So as a result, human beings are less tied to these other associations, whether their local community group, religious organization even, and other types of social groups, bowling leagues and things like that. We're less tied to them because they're less functionally significant.
So you might do it so as to have friends, but those friends aren't particularly relevant to your life other than that you enjoy spending time with them. But they don't have a real function in your life, an economic, political, or social function. The result is that human beings become alienated from the society around them. And Nesbit really hones in on the term alienation. And the result of that is that human beings don't have the deep integration into society that they otherwise would. Now, he says, this community is primary to what human beings are, so when human beings miss out on this, it's not as if, well, you know, one group performs the function, another performs the function, what can it possibly matter whether your social insurance comes from your local community or your religious organization or the political state. What can it possibly matter?
Well, the reason it matters is that your local community, your religious organization, your family, they can provide you with deep and meaningful, personal connections. They give your life meaning the political state cannot. While we find a lot of meaning in our patriotism, we don't find the personal bonds there that we do in those other types of associations. So the result is alienation. It’s the personal sense that we're disconnected from the social order around us. And even a loss of a desire. The social order around us becomes opaque, so we lose even the ability to want to be a part of it. In modern parlance, we’re content with our Facebook and our Netflix. The result, though, is a lack of meaning in our lives, which leads to an increase in suicide. This phenomenon, the connection between social alienation and suicide was first noted by Emile Durkheim in the late 19th century. The research on it, as far as I can tell, is fairly conclusive, that the more people are disconnected from their social groups, the less likely they are to go to church and have families and be involved in some social groups of one sort or another, the more likely they are to take suicide as a way out, deaths of despair go up, all those sorts of things. So Nisbet was very concerned about that.
Now, I see here that as Nesbit spends basically its entire career studying the social group and the way in which political power acts upon the social group to take away it's authority, to take away its personal relevance in individual's lives, and he of course describes what a social group is, what a community is, what sort of aspects it would need to have to be the integrating force in individuals’ lives.
And, what do we need? What sort of autonomies would it need from political power in order to operate effectively in individual's lives? So I draw heavily from him because his insight was, I think, profound in a way that's, for all the fame that he garnered during his lifetime, still, I don't think, was quite appreciated, just the—how profound of a thinker he actually was, how deeply he actually saw into the social order. A number of American thinkers in the 20th century were, a number of them, were profound. But I don't think, very few of them were as broadly and as deeply read as Nisbet, when he was steeped in continental philosophy, he was steeped in his understanding of the Western legal tradition. He was steeped of course, then, in the historic sociological tradition. He wrote a book called The Sociological Tradition, where he makes the argument, there are other, novel arguments, that sociology is a discipline, is an inherently conservative discipline because it studies the social order and the disruptions that take place in the social order from economic atomization and political democratization. Needless to say, it's a thesis I don't think is particularly popular in some circles, but it was one that Nesbit, is famous for it. It was one that I found quite compelling. I'm not a historian of sociology. I can't speak to its truth, per se, but it's very compelling, the case that he makes on why the sociological profession came about them in the way that it did.
John:
Great. Now, you're taking the sociology, you're applying it to the history of interpretation of the first amendment. And you use this term, “the first amendment dichotomy.” What do you mean by that? And how does that help us understand what's going on?
Luke:
Yeah, so Nesbit's argument regarding the exercise of political power and the way that it suppresses associations and communities, is that the state takes away the authority and functional relevance of associations by reaching through the association to the individual member. So you have a sort of alliance between individuals, thought of abstractly, extracted from their social context, and the state, the political state. And the state takes away the authority of associations over those members.
So you have a sort of a dichotomy in political society, where it's, when we talk about political rights or we talk about politics in general, we're talking about individuals and the state, state power and individuals. And that's really the only two entities we talk about. And we talk about all sorts of ways they interrelate.
But that's what we're talking about. Individual voters and rights holders. Yeah. Well, this plays out in the first amendment. So when we're talking about the rights bearers in the first amendment, we're talking about individuals, the individual right to freely exercise their religion, the individual right to express oneself, the individual right to publish one's opinions, freedom of the press, the individual right to petition the government.
So when we talk about the first amendment, that's the first-amendment dichotomy, talking about state and individual. Now, associations play a very important role in the exercise of first-amendment rights. So when someone, when one freely exercises one's religion, it's generally through a religious organization. And when one publishes one’s opinion, it's generally through a press outlet, an institution that's created to publish news and opinion. But when one expresses oneself, it's almost always through an expressive association of some sort. Certainly you have a right to be a soapbox speaker standing alone on a street corner, but that's not how people primarily express their views. They usually do so at the behest of an organization and as part of an organization. Even when they're speaking on the street corner, it's usually because some organization that they're a part of organized that, and then they went and did it. So associations and institutions are essential to exercise the first amendment rights, but we don't talk very much about the rights we find in the first amendment residing in those associations.
Usually we talk about, well, individuals have these rights, and individuals do have those rights. But the first amendment dichotomy wipes out an entire kind of swath of areas wherein it's not so much the individual acting per se, it's the association acting. That is, it's a structure of authority, of social authority, that is organizing a protest or organizing religious worship. The individuals are playing a role within that social structure. And if we don't understand how that social structure works, so we think it's unimportant, we may inadvertently wipe out an entire arena of the exercise of first-amendment rights without really realizing, and just think about religious exercise as an individual reading their Bible, believing whatever they want, but we miss out on the partaking of the sacraments, we miss out on all the other things that happen within the social organization. It's difficult to reduce to the exercise of the first amendment as an individual right.
John:
Now, you talk about the problem of the vanishing freedom of association, but it's not clear that it was there to begin with, that there is such a thing as freedom of association. It doesn't say it in the actual document. So where does that come from?
Luke:
Yeah, so freedom of association is not in the first amendment, what we have there is freedom of assembly. Freedom to peaceably assemble, John Inazu’s work basically says that what we talk about that we mean associations; what we're basically talking about is the freedom of assembly. Unfortunately, our language does not. Our common parlance does not track the language in the first amendment. So we have a little bit of a problem. We have a freedom of association, as I'm trying to talk about it, as most people try to talk about it, which isn't in the text, but it should be grounded in the assembly clause.
And that's what I say in my book, the assembly clause, this is the textual location. It's just that no one really knows what assembly means. They think that that means showing up to a meeting. And it's so much deeper and more profound than that. As John Inazu has pointed out, it means the composition of the assembly, it means the organization, the coming together in all sorts of ways that's much broader than just the meeting itself.
Now the court, when it talks about freedom of association, it coins this term in 1958 in the NAACP versus Alabama. And the court articulates that right in 1958 and in subsequent court decisions as the right, that the freedom of association is exercised when one assembles to speak. So when one practices the right of assembly in order to practice the right of free speech, then one is practicing the right of association. So the right of association isn't there, and the court creates this right called freedom of association that's actually tethered to the speech clause. And eventually in 1984, the court just completely cuts the tethered to the assembly clause and says “it's expressive association.” Now, I point out that's an impoverishment of the concept of freedom of association. And as John Inazu was pointed out, to cite Inazu, this is a misplacing of the right of association. it makes a lot more sense, I think, to place it in the assembly clause.
We could just talk about the right of assembly, as Inazu would have us do. The reason I use the right of association is that people know what I'm talking about. When I talk about the right of association, we have to do a lot of historical work, which Inazu has done, to explain why the right of assembly is the proper location of the right, and it should be the proper terminology. Now, I don't mind using a word that's not in the text when it's a synonym. So I'm okay with saying, oh, you know, our expressive rights are protected in the first-amendment. Expression doesn't show up there, but speech and press are clearly expressive, right? So it's okay to use it and a common parlance way. People know what you're talking about. And you still have to do get to doctrinal niceties regarding what the freedom of speech is, what the freedom of press is, and what the freedom of assembly is. But that's necessary anyway.
So that's why I stick associations, because it gets us to a language that people can understand, and also it elaborates on what the assembly clause is getting at, that is the organizational structure that's protected. When we say the right to peaceably to assemble, Inazu points out, that's a relational right. And it takes at least two to assemble. You can’t assemble by yourself. That's just you. So you have to assemble with someone else, that is, you have to have an association in order for that right to be practiced. So, we have the first-amendment right to assembly. It's the textual location. Freedom of association is what we're doing there. And that's a very deep right. It means the right of an organization, the right to form a social structure in some way between individuals. And when we're talking about that right, we're talking about something that's more than the sum of its parts. It's more than individuals exercising a right in that place. And we'll misunderstand it if we don't see it that way.
So that the court did not give us a good articulation of freedom of association over the last three quarters of a century. I think it's going to have to do a lot better job in explaining what it is and its proper textual location.
John:
Now one particular case, it's really the paradigmatic failure, you might say, which is the Christian Legal Society versus Martinez. It's right at the core of the book. What happened and what, in your view, went wrong?
Luke:
Yeah. So Christian Legal Society versus Martinez, this case happens in 2010, and here are the court—what happened here is a public university, Hastings Law School, had a student organization forum, and the Supreme court has treated student organization forums at public universities as limited public forums. That means they're a place where first-amendment rights are practiced. So when the university, public university, forms colleges and departments and administrative offices, it's internally organizing itself, as it sees fit. It can rearrange those and all of that. That's a matter of internal governance. But if it creates an organization, a student organization forum, it creates a forum where students form their own organizations. What it's doing is creating a first amendment forum. This is where first-amendment rights will be practiced. Rights of expression, rights of free exercise of religion. Religious groups will form there, such as Christian Legal Society, as well as other groups.
And the court—what happened in this case is the university implemented a policy that required all student groups to accept all students as members. So if you were the college Democrats, you would have to accept Republicans. If you were the basketball club, you'd have to accept people insistent on playing tennis. And if you were a Christian legal society, you would have to accept people who did not affirm the statement of faith. So Christian Legal Society had a statement of faith, and it’s in its constitution, that said you have to, from the statement of faith—basically it was evangelical Christianity. That's what we would recognize it as. So you have to believe in Jesus Christ as your lord and savior and those sorts of things. And it came along with, behavioral requirements that are associated with conservative, evangelical Protestantism and conservative Christianity more broadly.
Now, the university then turned down the membership, rejected the membership application of Christian Legal Society, on the grounds that it had an exclusive membership policy. There was a lot of evidence of pretext that is sent in the Martinez, the Martinez court brought up. So a lot of other groups had exclusive membership around something else, and the court, or the school, only in hindsight went back and made them change their constitutions.
But, what the court took was, can a public university and student organization forum, which the court continued to insist is a first-amendment forum, is a place where first-amendment rights are exercised and are relevant and are enforced? Can it tell groups that form there that they cannot have membership requirements or what their membership requirements have to be? And the court said yes, that is an acceptable thing for a university to do, a public university to do, and that does not violate first-amendment rights, because, the court said, students can still express their views. So in the Christian Legal Society, they can express whatever group views they want on their Christian faith and on the behaviors expected of Christians, even if dissenting members join the group and serve in a leadership capacity.
So effectively, I make the argument that this is effectively saying there is no freedom of association to be found in the first amendment. The court doesn't refer to the assembly clause at all. And I say, well, you know, this is a place where this, the creation of a limited public forum where the primary thing happening here is the formation of groups. So surely the primary rank here is freedom of association and the assembly clause. And the court says there's just no concern there. No assembly, no association concern whatsoever. It's just about the speech rights of individuals. And clearly just having another person show up to your meeting that you disagree with, or become your run for vice president of your group, and part of it, that doesn't affect your expressive rights. And of course, the court is right as far as that goes, that's just not the point.
The point was, can they form the association, and can they keep out people who would undermine the group? And there have been cases where, on college campuses, there’s a minority, a group that was in the ideological minority, and hostile students tried to join it and disband the group. The Christian Legal Society had 9 or 10 members; it would be pretty easy to get 10 or 11 of my friends, if I’m hostile to the group, to show up, vote me on as president, you know, take over the board, and disband the group. And attempts like this have been made at other universities.
And the groups, of course, that are going to be most vulnerable are the minority groups. There was some concern after 9/11 that Muslim student associations may be vulnerable to this. There was kind of a, you know, relatively mild anti-Islamic backlash after that. And there was just some concern that some universities students might get it in their minds that that would be a good thing to do to get the Muslim student association off campus. And under Martinez they could have done it. There would have been, if the school had had an all-comers policy, it was the group itself that would have gotten in trouble if they tried to keep them out. And that's just, kind of, on its face, a ridiculous understanding of what groups are.
So some people have come back against my criticism of Martinez and said, well, the university's just organizing its student organization forum however it wants to. And as I say in the book, it would be one thing if the court overturned its previous jurisprudence and said, you know what, we're wrong. The first amendment just isn't relevant here. Yeah, this is just the school organizing itself.
Now, I think that would be wrong. In a public university, it seems to make sense to me that a public university forms a forum where groups can form. That looks a lot to me like limited public forum and therefore first-amendment jurisprudence should be relevant. But the court didn't say that; it said the first amendment, yeah, it's absolutely relevant, but freedom of association, what freedom? And I think that's what's so dangerous about that case.
John:
So given Justice Ginsburg's recent passing, there's been a lot of attention on the Supreme Court in the last few days. And especially, lots of discussion about the history and future of civil rights. In the narrative you tell, it seems that freedom of association has a complicated relationship with civil-rights movements, early on very close, in fact supporting it, then later, not so much. Could you tell me, how you see those two relating?
Luke:
Yeah, the relationship between civil rights and freedom of association. So, as I said, the court's use of the term freedom of association arises in the context of the NAACP. so obviously the support of civil-rights groups. And in that case, the NAACP was trying to operate in Alabama. The State of Alabama had demanded the membership list of the NAACP. Oh, I'll leave you to guess what they intended on doing with it. And the NAACP refused to give it over. And the court said that's part of the associational rights, is the group can determine whether or not it wants to release its membership list or make that public. That's for the group to decide that for itself.
So it's very—freedom of association is very protective for minority groups in that way. So this group can now form and be active and get laws changed. And there's nothing the state can do to stop it. Of course, the group may not be successful, but that's not the point. They have the right to form and then they have the potential of being successful.
So it's been very instrumental in not just the civil rights movement, but in, kind of, in the rise of every unpopular movement. So for women's suffrage, the right of women to assemble, have conventions, that ended up implicating rights of assembly, often on the state level. That was before the incorporation of the rights, but it would come up, the right of the abolitionists to have their conventions and their assemblies, implicated the right of assembly as well, in the 1800s.
Now, as the civil rights movement has been more and more successful in terms of getting federal law, it's the exclusive groups now seem to be on the other side of the civil-rights issue. So can you have an exclusive group of what we would consider—in what context? So the civil rights triumph, in terms of employment law, for example, you can't discriminate in terms of employment. You know, what's the relationship there between an organization and its ability to not allow people to join. How does that interact with these civil-rights legislation since the 1960s?
And the relationship does become a little complicated. So, in terms of employment, virtually everyone thinks that employment law is perfectly fine for civil rights legislation. Act there, and there's no first amendment rights to only hire someone you agree with or to hire someone of a particular race or sex or something like that. The reason is, kind of, individual economic advancement. We've always made a distinction between economic things and kind of social and political things. But the question is, what about groups like the Boy Scouts? So the famous boy Scouts case from 2000. Can the Boy Scouts, engage in membership and leadership discrimination, in a way that might be against state or local legislation?
And the court in that case said yes, a private organization can do that. But what about an all-male group? Would that be a problem? And the answer the court has given is, it's complicated, and it really depends on how much the group might influence employment prospects. So if you have an all-male business association, the court might deem that you don't have an associational right, because there's a lot of networking that takes place there. It'll hinder the economic advancement of women if they can't be a part of your group.
Now, the court has not been in my opinion, very good at articulating the boundaries of that doctrine. So in 1984, in Roberts versus Jaycees, it says that an-all male group, Jaycees, was not adequately expressive for its expressive association rights to be all male and to advance the interest of young men in business to not override the state’s concern with equality. So the organization had to admit women. Now the problem with that case is the court gives us no analysis on whether or not the Jaycees and full membership in the Jaycees—women and older men could be associate members in the Jaycees. They just couldn't be full members. Did that actually affect their economic prospects? The court says, well, we can let the value of the state's interest in equality trump association rights. But then it doesn't tell us the boundaries. So virtually every group, you can make the argument, about the inequality arguments, that it the interest of the state in inequality should trump that group's ability to exclude.
So CLS versus Martinez, you could say, well, you know, this is a networking opportunity for nonChristians that they're missing out on by not being able to be a member of the Christian Legal Society. You have to give some boundary, and Inazu argues for a contextual analysis. So the courts need to look at how that group operates on the ground. So if Christian Legal Society, for example, ran the law review at Hastings Law School. You could see where, wait a second, you could see why a public university could intervene and say, no, you can't exclude nonChristians from the group. That's effectively excluding them from a law review. That's important for economic advancement and career advancement, so you can't do that.
Was it true that in Jaycees, that in order to get a job in Minneapolis, a good job in Minneapolis and St. Paul man, you just had to be a member, a full member of Jaycees, not an associate? You missed out on the networking opportunities. Was that true? The court doesn't tell us. If that was true, then that might make sense to me that they would rule the way that they did, but they don't say. And what they leave us with is a doctrine that says, well, if the government has an interest in equality, that very well will trump the association’s interest. And what I pointed out is, well, then we don't have associational rights, if that's the case. Because that can always be said about every group, no matter how big or small. As well, you know, this is unequal just by accepting some people for some reason and not accepting others. And as I point out, we might end up with outcomes we think are ridiculous.
So for example, the court has said we can deny tax exemption status to educational institutions, private educational institutions that engage in racial discrimination. Do we want to take that a step further and say we can take away tax exemption status from institutions that engage in sex and sexual orientation discrimination? So should Wellesley college lose its tax exemption status because it's all female? I think that's—nobody wants that. That’s kind of laughable that that would even be on the table, but that would be the implications if we're going to allow and not allow freedom of association, not just around belief, but even around what we call status. So there's a distinction between race, status, and belief. So belief would involve most religious organizations, though by no means all, and status, or things like sex and sexual orientation, and then race.
So, can you discriminate on the basis of race? Not in terms of employment and probably not in terms of a lot of social organizations as well. The courts, for very obvious reasons, It's very nervous about that because of the legacy of slavery and all of that. So, there are ways in which, even when the political suppression of African-Americans passed, the social suppression, sort of caste system remains in place, and we don't want that. So the court can, or the government can intrude into arenas that would normally be protected under the first amendment to kind of offset these social concerns. And I don't really challenge that. What I point out is that it was precisely on the grounds of protection for those associational rights for those groups that allowed them to rise in the first place.
And the NAACP formed a stringent membership standards around support for civil rights. And the group could have been, without number, could have been taken apart, had the court applied Martinez analysis in that context. Similarly for other groups as well. So there is a tension between civil rights and freedom of association, but it's a very complicated tension. But I think it's one that we can navigate. And there is very much a split in first amendment among first-amendment scholars on how to deal with this issue.
John:
Thank you. Is there a particular legal theory that drives your work?
Luke:
Do you have in mind, like an interpretation theory or…
John:
Yeah. Yeah.
Luke:
Sure. Yeah, I try to, as much as I can, be eclectic and benefiting from the virtues of various legal theories. So, I think, textualism contributes a lot. So Inazu says, you know, when he writes, what, kind of, his methodology is, he says, you know, I'm textualist in the sense that I want to look at the text. So assembly, I want to look at what that means and what it should mean. But I'm also willing to acknowledge, you know, changes that take place over the last 230 years, and think through, kind of, what the dialectic between these various positions might be and what we can end up, what we can do with these rights in our current circumstances.
And I take a similar, kind of, eclectic approach. So, I draw from Inazu in saying here's our text. That has to mean something and it has to mean something important. But I also draw from history, thinking about what the term assembling meant. Historically, I'm drawing a lot from Inazu, his historical research, but also thinking in terms of historical situatedness. So, for example, the court has said, and been criticized for saying, we can have certain—it's legally permissible to have some, to take race into account in, say, college admissions, to right past wrongs of racial segregation and racial disparity. But that power of the government may go away as racial equality improves. So they were criticized for this, saying, like, you know, how can something be right today and not tomorrow? And that's a very good criticism. Obviously. But with the court was, you know, to be charitable as we can to Justice O'Connor and the rest of the court, what they were trying to do was deal with historical situatedness, the reality of the aftermath of slavery and its aftermath and try to, while recognizing the importance of individual rights and racial equality, and trying to split the difference and balance all the, and take everything into account. And I do say, you know, look, we can, we can protect our right of assembly and freedom of association while perhaps being willing to abrogate them or hem them in certain circumstances.
So I, for example, bring up the example of, the court has said that we can deny tax exemption status to recently discriminatory educational institutions, like Bob Jones University—that's the famous case. And a lot of people said it's virtually impossible to stop there. So either the courts—it's a very strong argument that other groups have been discriminated against in other contexts. Why not take that and take tax exemption away from Wheaton, the evangelical school, because, historically, LGBTQ people have been discriminated against. And here that we have this institution that has that requirement that you abide by traditional Christian teaching, which would seem to be discriminatory against LGBTQ people. So shouldn't we take their tax exemption status away as well? And what's the difference? Why are we gonna stop between the two?
And so a lot of people have said, well, Inazu says, well, maybe we should backtrack then on that. Because we just people and the courts are not good at making these distinctions. And he's right on that. That said, for 40 years, Bob Jones has stood, for nearly 40 years. And we haven't taken it further, and people, of course, grumbled, and there's been talk of taking it further, but we haven’t. We said, hey look… In fact, the federal courts actually did back off of Bob Jones, a little bit; the ninth circuit had a case in 2006, and it said racially discriminatory private schools are permissible, as long as the target of discrimination are not African American. So in this case, it was race exclusive for native Hawaiians. So it wasn't targeted at African Americans the way Bob Jones was. So they said, you know, historic discrimination has to do with African Americans. Just racially exclusive in a negative sense, not inclusive of certain racial groups. That's different, fundamentally different from what was going on in Bob Jones.
So the court's been able to draw lines and make distinctions over time. And so I say, well, we could keep that distinction perhaps, in the educational context, and maybe even apply it to student groups. So could a, I would say, for freedom of association grounds, can a university intervene in the membership of a group on race of exclusive grounds? And I say, well, following Bob Jones, let's say, yes, they can do so. Could they tell a fraternity or sorority they can't be single-sex? I would say, no, that's actually a constitutional right. The court does not say that fraternities do not have the constitutional rights of association. Federal courts have been, have turned that down. But I would say they do have a constitutional right and constitutional rights to not only exist, but to be sex exclusive. And that would apply to other student groups as well. It would apply to colleges and universities, Wellesley college, Wabash College. They're both okay, I would say, on first amendment grounds.
So the line there, and we can do some line drawing—a lot of people have said, well, it's very difficult to keep those lines in place, and they're right. Nonetheless, we've managed it for almost four decades with Bob Jones. maybe we can manage it a little bit longer. And we should consider, Inazu would say, given the social changes we've seen in the last 40 years, we might consider a reconsideration of Bob Jones, because we don't keep these distinctions very much in mind.
And a number of first amendment scholars would say we are compelled on the logic of Bob Jones to go after the tax exemption status of a number of other churches. The Catholic Church needs to lose its tax exemption status if it wants to ordain, continue to only ordain men, and a number of evangelical denominations need to lose their tax exemption status, as they continue to teach what they do regarding sexual ethics and that sort of thing.
John:
Part of me wonders whether it's too much of an ask to try to have something that's theoretically coherent, and whether instead what we need is something pragmatically, I don't know, functional or adequate to the situation—which goal do you see as reasonable?
Luke:
Yeah, that's a good question. I think the court is generally better off when it tries to be as practical at can in the circumstances and develops a rule. Over time, we start to see the line and the theory emerged from the particular circumstances. So we took the Martinez case. If you looked at the group of nine or ten students, Christian Legal Society, and you said, this isn't a group that's so, you know, politically influential that it's, you know, costing other students at Hastings Law School in terms of their economic and professional prospects. I mean, if they kind of looked at it on the ground, they might've come to a different conclusion, I think, and said, this is just an associational group. First amendment operates in this forum. I think we have to say they have an associational right. And instead they want to, you know, kinda talk about, you know, the theory, the individual and the theory of free speech. And they end up getting very much off track of the circumstances on the ground. We're dealing with a group here that's nine or ten people; it just isn't operating in this way at all. “We can't have discrimination”—it's a group of nine to ten students. It just isn't as influential as they seem to think that it was. But for those nine or ten students, it was pretty important. This was an expression of their identity as Christian aspiring lawyers. So their professional identity and their religious identity, and their personal identities were very much bound up in that group.
And a lot of student groups are that way. You join them to—you feel very invested in them. They shape you, and you shape them. So being able to exclude people who would disagree with the evangelical-Christian-lawyer thrust of Christian Legal Society would bring this change to the character of the group and deny its members that value. So I think the court's better off being pragmatic. And you're coming up with some simple rules that'll get to the heart of the issue. And I tried to do that in my book, is come up with a few simple things to keep in mind, what I call the functional judicial test, that would help the court focus upon the operations of the association. So I say, what the court needs to do is ask about the functional autonomy of the group and can the group carry out its function. So I don't ask you about dogma, about belief, or expression of that belief, but can it carry out its function. So this would protect expressive associations as well as non-expressive associations.
So can the group do whatever it's trying to do? Can the chess club organize the playing of chess? That's the primary issue for its members on the terms the members want. So they might be stringent. They might relax—the group will determine that, but surely that includes excluding people who would insist on playing checkers at the chess-club event, or refuse to show up to meetings, or refuse to watch The Search for Bobby Fisher, or whatever it is that the chess club requires.
Now for a Christian group, it means allowing members to be told they have to abide by the statement of faith. What makes an evangelical group important for evangelicals is that evangelical beliefs are what everyone else believes in, and evangelical practices in terms of your personal life are what everyone else does. So can the group be autonomous as to its function determined for itself, be self-governing in terms of its function, whatever that is? And then a few other questions follow from that. Does this policy inappropriately centralize authority? So, that is, for some reason, the political power that be, whether it's the state university, or whether it's the state of Minnesota, or whether it's the federal government, is it somehow taking power to itself that just doesn't belong to it? The administrative state can do plenty of things, but there's some things that maybe it's inappropriately taking from a first amendment organization. And the court should ask that question. Is this happening here?
And then, is the government impinging upon the authority of the group? So is it somehow coming in between the individual member and the organization in some way, when the organization tells an individual member what to do in some way? So there are some things organizations can't tell members what to do. We think of those as kidnapping [laughs], and things like that would come into play. But, is it inappropriate, what the government's doing? I mean, it's inserting itself into that relationship, and the court has to ask that question.
And then finally, is the government impinging upon the traditions of the group. And I get these four questions out of Nisbet. He uses this kind of broadly to talk about pluralism as a broad social theory. By traditions, I mean the practices of the group. So that is the formal and informal ways in which the group operates. So from the outside, it might seem silly to have some practice, or some ritual, or some way of being of this group that seems immaterial to the purpose of the group. Why can't it possibly matter that the chess club meets there instead of here, why can't possibly matter it being this time instead of that time? From the outside, these things can seem very opaque and, simply, with a lot of religious practices, if you're not a part of the religious organization, or that religious tradition, it can seem just, you know, sometimes frankly bizarre why that's important.
That's all that matters! What matters is that people inside find these traditions important. These traditions emerged from their interaction. So the state should be very careful that it doesn't impinge upon practices that it sees as unimportant. The rest of us look at it and just cannot understand why it would possibly matter that a group requires something of its members. The growing of a beard for some religious organizations, I think, is entirely opaque to if you're a Protestant or, to most people, it just seems entirely why on earth that would possibly be important. But for some religious traditions, it is important. Orthodox Jews, Muslims, Eastern Orthodox Christians. It is important. It's from the outside, it seems like, just shave! Why on earth could it possibly matter. But the tradition is really important, embedded deeply in the lived experience of that to religious tradition. So the state should be very hesitant to enter into that. And so I'm talking here about tradition, small “t” traditions, and large “t” traditions—little practices that might be really important to the lived experience of this group, religious or nonreligious, that would actually very much be disruptive if from the outside, if an outside the authority tried to disrupt them.
And so I said these kind of four things, and especially functional time, that's where we're getting at. If they can just stick by that rule, that'll help the court recognize associational rights. So that is, it shifts the focus to the internal dynamics of the social structure of the group. Make sure we don't impinge upon this assembling, the social authority that's forming between individuals who are exercising the right of assembly or getting together and determining for themselves how they are and what they're going to do.
How can we not impinge upon that as much as possible? And I do say there should be a balancing. Sometimes the state will need to, for various reasons, our liberal democracy may have reasons, good reasons that it needs to, for the purpose of individual rights or equality or something, there might be reasons to intrude. That's fine. But right now we only think of the individual and individual rights, thought of very abstractly. An individual right, for example, to free speech, thought of in a contextual way, is just an individual exercising that right. And not how important the social context is for the individual to be able to be embedded in a social context to express that right. Or just the individual right to join whatever group they want. A lot of times we describe freedom of association in that way. That cannot possibly be right. You're only allowed to join groups that would have you, that is, with the internal structure of authority these other individuals have formed in their complex social interactions, that you aren't disruptive to, they would have you, then yes, you can join that group. But it's, we can lead the focus on upon this third component, associations, not just individual and state, although those of course play a role in the broader first amendment landscape.
John:
Thank you. One of the things that's really impressive with this book, and it seems very obvious about your work more generally, is that it's inherently interdisciplinary. You're in sociology, you know, you're in legal history, you're in philosophy, across a lot of boundaries. How do you understand the relationship between say philosophy, sociology, political theory on one hand, and law on the other?
Luke:
Yeah, that's a good question. So I said earlier that, you know, the courts should stick with some basic rules and not get too much into theory. The problem with that is that sometimes they can, they have a theory, no matter what. And so my critique is the court has imbibed a particular theory of how legal rights operate, that has missed the ways in which legal rights have operated. Ironically, they're missing the actual point of how they've actually operated for centuries—that corporate rights are a strong, vibrant part of the Western legal tradition. It's only very recently that they've kind of slipped from the public view. And so the court’s really missing something by not thinking deeply about what that is. And I say, you know, well, let's just come up with a rule that'll kind of lock them into that tradition without them having to, understand it themselves.
As some critics of the book pointed out, the courts—judges aren’t particularly good at making the right distinctions. And, as that the court generally makes a fool of itself when it tries to wax lyrical about philosophical points. As it does to it's kind of everlasting shame in Buck versus Bell, where Justice Holmes waxes lyrical about the value of eugenics. And it's completely unnecessary that he does that; he doesn't, he could have just said, well, state law, you know, is supreme here. We have nothing to say. And he doesn't; he waxes lyrical about the value of eugenics and why the state law is perfectly permissible given the theory of eugenics. The court’s, you know, made a fool of itself in a number of occasions by treading into philosophy.
But the law has to recognize the reality to actually govern. And the reality is socially complex. There's all sorts of social groups at work in our society. And I don't think the law can pretend like they don't exist. And in certain ways, the court recognizes this in first amendment law. So there are exemptions for individuals the court has recognized who are part of certain religious traditions. So I brought up growing a beard. I think it's Holt versus Hobbes where the court has said that prisons can't have, they have to give an exemption to growing a beard based upon religion. Now they can have certain safety precautions around that. So it can be, you know, limited to a one inch beard, but they can't say you have to be clean shaven if your religious.
So it said, like, look, if you're part of this religious tradition, that's true too. And that religious tradition can have—the we've articulated it in our tradition is the individual right to religious practices, the growing of the beard. But I think the part that's being ignored is the authority of the religious organizations and tradition upon groups. So it's not just that individual is saying, well, I want to do this thing. It's that it's part of a complex, a constellation of social authority that's saying, “If you will be part of our organization, you have to abide by these rules and follow this way,” which is more complex. And the court, furthermore, should be willing to recognize the spheres of autonomy, more so than it's been willing to. And so the kind of interplay of philosophy—this brings, of course, philosophy into play, sociology into play. We have to recognize what these groups are. The theoretical work of Nisbet on sociology has been very helpful, and in the tradition he's in, the wheelhouse of Emile Durkheim. Sociology is much more quantitative these days, so they don't do as much of this, but that way of thinking has helped illuminate certain legal aspects that I think are downplayed in the law.
So, now, like I said, it's a little difficult than telling judges what to do, because I'm a little of two minds on this thing. I want them to recognize the social reality that I'm talking about. I'm also perfectly willing to recognize that they do a very bad job when they get into theoretical areas. So I think it's maybe it's up to scholars to really try to work it out and then get us down to some, as I said in a recent response to the book, maybe we do need more handholding on this. Hopefully we’ll just get down to a few rules and be like, well, you can recognize freedom of assembly if you follow these four steps. That might be where they, where they relate. But I think to really study the law, you have to understand its historical developments. You have to understand, the role that religion played in the development of the, of our Western legal tradition.
So even our theories of religious Liberty. Steven Smith and Richard Garnett have done some important work on pointing out that what we have in the first amendment is, in some ways, a resuscitation of the 11th and 12th century idea of Libertas Ecclesiae, so, that is, the Liberty of the Church. So why can't the federal government establish a church? Because institutions are left free. And that was part of the point. So it was a resuscitation of that, kind of, lurking underneath the modern, modern idea of religious liberty, which should—and the modern state had very much institutionalized religion, either Catholic or Protestant, and very much been into institutionalizing it rather than leaving these as separate authorities.
The first amendment seems to actually revive a medieval understanding. There's the separate authorities. The state does not have jurisdiction. That's the term Steven Smith uses, does not have jurisdiction in matters of religion. These other organizations do, and they can act there, kind of without taxes. That's an ancient, ancient privilege, an immunity, to be free of taxes. And our religious organizations get to operate in that capacity. So to understand that, though, you've got to bring in philosophy and sociology and all these other things.
John:
Thank you. Now I'm very curious, what are you working on now? Or where are you headed?
Luke:
Yeah, so I'm trying to take, my kind of theory of first amendment pluralism, which I talk about in this book, and apply it to the constitution a little more broadly. So here I'm saying, in this book I say, well, I think what we need is, instead of this first amendment dichotomy, we need a first amendment pluralism. So, that is, a recognition of individuals and a variety of social authorities are interacting in complex ways in the first amendment. And that state has to recognize these rights, so, that is, a functional autonomy of groups, as well as the rights of individuals that exercise first amendment rights. And both of them are doing it and they're doing it together and it's a complex interplay. And the court is going to have to have a kind of diversify its understanding of what's happening there.
Now the next project is trying to see this idea of pluralism more broadly in the constitutional community. So Nisbet has a book called The Social Philosophers he published in 1973. And there he says, it's a similar argument to Quest for Community, but he says, I'm going to give to you the major types of community throughout history that human beings have in their quest for community found. And he says war is one of them. The political state is another, religion is another, revolution is another. And what he calls the ecological community. So that is the communities of withdrawals. So think of monasteries; those are communities of withdrawal. And then a sixth example is the plural community.
So all of these other communities usually have a singular goal. The religious community’s singular goal is the sacred and the veneration of the sacred in some way, however that's articulated. The political state, the primary goal is political order and political power. And the military community, Nesbit understands it as very closely tied to the political community. The political community most always rises out of the military community. And so think of the rise of the Caesars—ancient Rome is basically a filial community. The major families are what rule Rome. And then there's a widespread, or the gaining of the empire, then there's civil war. And then there's a rise of the Caesars. So the political state really gets going when the Caesars rise and they change the laws that take the loyalty of the soldiers to themselves rather than to their families. So previously the individual soldier comes back to Rome and is now under the authority of the family and has to turnover their pay and all that stuff to the family. Well the Caesar, Augustus Caesar changed this law so the soldier keeps his pay. And when he returns to the city, he's still under the empire’s authority. So they have the political state and the individual citizen.
So, I'm thinking about this in terms of our constitution community. So do we have a political constitutional community, where it's primarily about the individual citizen and the political power, or do we have the plural constitutional community? So a plural community is a community that has a variety of goods and ends it seeks, and recognizes a variety of authorities. So I'm going to say, yes, we have a plural constitutional community. So at the outset, we have our basic concepts that everyone learns in high school, federalism, and separation of powers. Namely, federalism is, at the outset we say, well, we actually have multiple political authorities. We have the States, the federal governments, and we even have local governmentsm and they have their own spheres. And it's complicated how they interact, but at the outset we’re saying, well, we're not technically speaking just a political community. We're more like Nesbit’s plural community.
And then beyond that, there's a recognition in our system of the vast swath of social authorities. The first amendment is a primary mechanism of this. So recognizing that religion is not the realm of the state. In plenty of political systems it is. So the state is the primary authority and the high priest is also the king, you know, as has happened historically plenty of times. In our system we say, well, actually the religious authority is just beyond the jurisdiction of the government. The government can't tax it, they can't regulate it, it has very little authority in that realm. And that's more like the plural community. Now, if we start thinking of ourselves as a plural constitutional community or political constitutional community, there are broad, very serious ramifications for all sorts of things, all sorts of policies, all sorts of ways in which rights are practiced.
And I'm not going to argue that first amendment scholars follow into one of those communities, or ideal communities. Plenty of scholars say, actually, it's all about political order. So why do we have free speech? Because it upholds the democratic community. Why do we have religious Liberty? Because it helps religious communities, it helps shape citizens and the views of citizens. So everything is in reference to the political community. Now if we think of the plural community though, then, those rights are exercised not for the health of the state, but for their own ends. Why do we allow religious communities to be themselves? Because maybe they're true. Maybe the reconciliation of the soul to God, or Allah, maybe that's something that is good and maybe it's true, and the primary authority that would know that would be those religious organizations. So we're going to let them be free, and they will work it out amongst themselves which one is the right one. And there's a variety of other social authorities wherein we grant them that, that leeway. And historically that's what America has been.
So Tocqueville's associations—basically Tocqueville says, I look around me in America and I see all these associations just doing all these things. And so basically there's all these social authorities acting on their own by their own initiative, that are coming into existence, going out of existence and doing all these things. And they're just free to do so. And everyone in America just thinks that that's the way it works. So, he, of coursem doesn't have this term, because Nisbet points out but he's looking at plural community.
And so I'm arguing that plural constitutional community is really what we have in the constitution and what we have in our bill of rights. And it's one we should embrace. And you don't have to be a particular ideology to embrace it. And Nisbet’s very clear that there are pluralists that are liberal, conservative, and radical, but they have a pluralist orientation, just like there are [inaudible] who have supported the political state who are conservative, liberal, and radical. And that we can have a political diversity and political diversity, political parties, but see ourselves as a plural community. And I will argue it is a far more humane constitutional order than the political constitutional community.
John:
Nice. Now, aside from your work, who else, if you could just give us, I don't know, two or three names of people we should be reading right now, in your field.
Luke:
Yeah, sure. So, I mentioned, John Inazu at Washington University in St. Louis Law School. I think he's one of the best first amendment scholars out there. He has done a lot of great work on the assembly clause and on pluralism and articulating what I'm going to call the plural constitutional community. He basically can be seen as, he wants to kind of expand the Overton window in terms of what, who we will grant constitutional rights to. We always want to narrow it. And then, you know, that narrowing changes as, as the use of society changes, but we should keep it as broad as we can. Who are we going to grant assembly rights to? As many groups as we possibly can. Like not everyone, not satanists who are going to, you know, sacrifice children. And you know, there will be lines that will be drawn, but as broadly as we can, we should do it. And so, I think he's doing some really good work there.
Richard Garnett and Steven Smith are doing work on, have been for, gosh, I think a couple of decades now, on freedom of the church and what that means. So not just religious liberty as an exercise of individuals, but what it means is there's this, these institutions that are free to be self-governing and that's what the first amendment is requiring of them. So I think they're doing really the best work.
Paul Horwitz is another scholar has done excellent work. His book First Amendment Institutions, published in 2013, I think, really kind of helped me hone in on the institutional role in the first amendment. So I'd say those four scholars are really the best up there.
John:
Well, thank you so much for joining us today. And I look forward to seeing the next products.
Luke:
Thank you.
John:
Sure. Thank you.