Freedom of association
Free Association redirects here. For the article on Associated states, see "Compact of Free Association".Freedom of association is a Constitutional (legal) concept based on the premise that it is the right of free adults to mutually choose their associates for whatever purpose they see fit. This concept has been included in several national constitutions, including the
United States Constitution, the
European Convention on Human Rights, and Canada's
Charter of Rights.
While the
United States Constitution's First Amendment identifies the rights to assemble and to petition the
government, the text of the First Amendment itself does not make specific mention of a right to association. The
United States Supreme Court jurisprudence names two distinct ways in which the right may be implicated:
1. Freedom of association is recognized and may be protected as a fundamental element of
personal liberty when choices to enter into and maintain certain intimate human relationships are at issue.
2. Freedom of association is recognized and may be protected for the purposes of engaging in activities protected by the text of the First Amendment—
speech,
assembly, petitioning government for a redress of grievances, and the free exercise of
religion. Because the role of these relationships is central to
safeguarding individual freedoms, they may receive protection from undue intrusion by the
State. Thus, there is a constitutional freedom to associate as a means of
preserving other individual liberties.
Limitation
However, the implicit First Amendment right of association is not a
general right of association. For example, it is illegal in the United States to consider race in the making and enforcement of private contracts other than marriage or taking
affirmative action. This limitation of freedom of association results from Section 1981 of Title 42 of the
Civil Rights Act, as weighed against the
First Amendment according to the court decision
Runyon v. McCrary, 427 U.S. 160 (1976).
The holding of
Runyon is that the defendant private schools were free to
express and teach their views, such as
white separatism, but could not discriminate on the basis of race in the
provision of services to the general public. So if the plaintiff
African-American children wished to attend such
private schools,
and were clearly qualified in all respects (but race) and were able to pay the fees,
and were willing to attend
despite the fact that the schools strongly disliked them, then the schools were required by Section 1981 to admit them. The general rule to be drawn from this is that the First Amendment protects the right to express, including expression of racial discrimination, but people may not practice such ideas even within private associations.
This doctrine rests on the interpretation of a private contract as a "badge" of
slavery when either party considers race in choosing the other. The phrase "badges... of slavery" is from the Circuit Court decision 109 U.S. 3 (1883) [
1] upholding the power of Congress to pass laws under the
Thirteenth Amendment to the United States Constitution compensating for the legacy of slavery.
Freedom of association is a term popular in
libertarian literature. It is used to describe the concept of absolute freedom to live in a community whose
values,
laws, and
culture are closely related to what one wants.
Most libertarians believe that
federally enforced laws and difficulty in moving between countries limits peoples' freedom of association, and are in favor of local control.
The libertarian concept of freedom of association is often rebuked from a
moral/
ethical context. Under libertarian laws, businessowners could refuse custom to anyone for whatever reason. Opponents argue that such practices are regressive and would lead to greater
prejudice within
society. Those sympathetic to freedom of association, such as
Richard Epstein, in a case of refusing service, a case of the freedom of contract, respond that unjustified discrimination incurs a cost and therefore a competitive disadvantage.
To most of the world, the freedom of association is a right identified under international labor standards as the right of workers' to organize and
collectively bargain. The freedom of association is recognized as a fundamental human right by a number of human rights documents, including the
Universal Declaration of Human Rights and
International Labor Organization Convention C87 and
Convention C98 -- two of the eight fundamental, core international labor standards.
*
Jeremy Bentham*
Anti-globalization movement*
Self-determination*
International Freedom of Expression Exchange
