The Forgotten Freedom: Freedom of Association

by Maggie Gallagher

Following a new ruling in California, religious clubs on campus cannot require their leaders to be religious.

I would prefer to be turning my gaze to a new subject, but reality keeps yanking me back.

In the last few weeks, the government of the State of California, acting through the California State University, has announced that Christian, Jewish, Hindu, Muslim, Sikh, and any other religious groups now have second-class status at public universities. All campus groups must permit any campus member into the leadership of their organizations. Jewish groups cannot require their leaders to be Jews. Christian groups cannot require that their leaders adhere to Christian beliefs.

The Supreme Court permitted public universities to declare this policy in the narrowly and wrongly decided Christian Legal Society v. Martinez, which is a cancer upon our democracy and a disgrace to our democratic ideals.

Charles Haynes is no member of the Christian Right, but he describes this ominous new development as a rejection of pluralism triggered by the challenges posed by gay rights:

The move toward “all comers” policies directed at conservative religious groups has been triggered by what many perceive as a clash between religious claims and LGBT rights — a clash that is, of course, at the heart of many other culture-war battles today.

Until this culture-war fight erupted, few questioned the reasonableness of allowing the Republican club to require that their leaders be Republican or the environmental club to require that their officers be environmentalists.

Meanwhile, in Massachusetts, Barbara Brittingham, president of the New England Association of Schools and Colleges’ higher-education commission, announced that Gordon College may have violated the NEASC’s accreditation standards. What was the nondenominational Christian college’s sin? Like many Evangelical Christian colleges, Gordon requires that faculty and students promise to live by a Christian code of sexual conduct that forbids sex outside of a marriage between husband and wife. The NEASC has given Gordon College 18 months to review its policies.

Accrediting agencies are private organizations and thus are free from the explicit obligations of the First Amendment, but not from its moral power.

The First Amendment to the United States reads this way:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Freedom of association is in the very first amendment for a reason. This telling conglomeration of rights of conscience is the precondition to a democratic form of government. Without the right to speak freely, to form our consciences through religious institutions and practice, to organize together to pursue common ends, and to take our grievances to legislatures, democracy cannot exist.

I have never participated in any effort to suggest that gay-rights groups must permit people who oppose gay rights to be leaders of their organizations, on or off campus. No one I know has ever organized to try to deprive activists in the Human Rights Campaign of their right to speak, assemble, and organize (and get tax benefits) on behalf of their vision. So I think I can in good conscience say that in my experience this is a genuinely one-sided ominous attack not only on the rights of traditional religions but also on the idea of pluralism in a democratic state.

The First Amendment applies only to government — the federal government, and through the incorporation doctrine relying on the 14th Amendment, to state and local governments.

But the idea of pluralism, a culture of free speech, respect for conscience, and the right to organize is a precious inheritance that applies not only to government. Whether we safeguard this inheritance is a test for each one of us.

— Maggie Gallagher, a senior fellow at the American Principles Project, writes at MaggieGallagher.com.