Berkley Center

The California controversy highlights the fact that threats to religious institutions are often indirect, involving the revocation of government benefits to organizations that cannot comply with certain generally applicable antidiscrimination policies because of their religious beliefs. Another California-based example of this unfortunate practice reached the Supreme Court in the 2010 case of Christian Legal Society v. Martinez. The University of California, Hastings College of the Law required all official student groups to adhere to an “accept-all-comers policy” or otherwise forfeit university benefits. A small Christian group objected, arguing that this policy prompted it to admit members and leaders who disagreed with the group’s core beliefs, and that relinquishing university benefits put it at a significant disadvantage in the university’s forum of ideas. This policy, the Christian Legal Society contended, was at odds with the Supreme Court’s long tradition of protecting “freedom of association,” a right grounded in the Speech and Assembly Clauses of the First Amendment.

In a 5-4 decision, the Supreme Court upheld the law school’s policy, concluding that Hastings was not discriminating based on viewpoint, but simply enforcing “reasonable conduct standards” on all student groups. In his concurring opinion, Justice Kennedy suggested that the Christian group’s requirement that its members adhere to certain religious and moral beliefs undermined the school’s goal of diversity.

The fact that the court found the policy to be reasonable highlights the court’s departure from its once firm understanding of why association is protected as a distinct form of expression. In several prior cases, the Supreme Court affirmed that the right to associate necessarily includes the right to exclude individuals who do not adhere to the group’s principles, since the presence of these members affects the group’s message. Hence, the “conduct” that Hastings sought to forbid in the student group forum, with the court’s stamp of approval, was the very act of association itself. Particularly since the court has rejected the idea that the First Amendment applies “with less force on college campuses,” the Supreme Court’s conclusion lacks a solid legal foundation.

The threat to religious schools and voluntary associations more generally is concerning in part because religious institutions and other associations play an essential role in liberal democratic societies. First, and most obviously, they often provide invaluable social services to their communities. Second, religious organizations and other groups provide individuals with a sense of community and belonging, which is crucial in democracies where the social structures that once provided a sense of place are lacking. Third, associations protect individuals from the dual tyranny of the state and the majority. This last point is critical and often overlooked. In his eminent nineteenth century treatise Democracy in America, the French sociologist Alexis de Tocqueville described tyranny of the majority as the “greatest danger” to the American republic.

For Tocqueville, majority tyranny is a danger in part because the majority naturally wields the most political power, leaving minorities without a refuge when they are oppressed. But another, subtler problem that he sees is the moral power possessed by the majority. While a tyrannical monarch can control only the bodies of men, the despotic majority shapes their thoughts in a remarkable way. In America, he observes, “as long as the majority is doubtful, one speaks; but when it has irrevocably pronounced, everyone becomes silent and friends and enemies alike then seem to hitch themselves together to its wagon.” Americans, according to Tocqueville, are deeply unaware of the power the majority has over their ideas. Our individualism causes us to believe that we arrive at conclusions only by our own faculties, when in fact all human beings, even the greatest philosophers, always place some faith in others. But, as traditional authority structures disappear in democratic societies, the majority voice is left to dominate.

Yet Tocqueville does not despair. His work contains within it the solution to the problem: associations. He explains that associations allow minorities to establish their presence within society and to “set up a competition” with the majority via argumentation and persuasion. In other words, associations, even unpopular ones, provide dissenting voices that are necessary for robust dialogue about what a free and flourishing society entails. Hence, contrary to what Justice Kennedy suggests in the Martinez case, strong protection for associations will only encourage diversity, not stifle it. While Tocqueville himself was not an American jurist, his vision of the pluralism-enhancing nature of associations has echoed in several Supreme Court opinions.

In the 2012 church autonomy case Hosanna-Tabor v. EEOC, Justice Alito stated in his concurrence that, throughout American history, “religious bodies have been the preeminent example of private associations that have ‘act[ed] as critical buffers between the individual and the power of the state.’” Likewise, religious bodies have shielded individuals from the power of majority opinion. Indeed, religious organizations, presenting arguments rich with insights from their own faith traditions, played a significant role in both the abolition of slavery and the Civil Rights Movement—developments that required changes in public opinion as well as government action.

The Martinez case demonstrates the critical link between religious freedom and freedom of association. While the court has consistently protected churches and other houses of worship, it has left other types of religious organizations, such as the student group at Hastings, vulnerable to state government power. The Supreme Court should return to a Tocquevillian understanding of associations, which would protect both religious freedom and the freedom of all Americans.