Liberty's Refuge: The Forgotten Freedom of Assembly.

• Author: Appleton, Susan Frelich
• Position: Book review

John Inazu's impressive book, Liberty's Refuge: The Forgotten Freedom of Assembly, (1) interweaves two projects. First, it critiques the Supreme Court's development of the freedom of association. Second, it makes the case for reviving the freedom of assembly in order to strengthen constitutional protection for the rights of groups, in particular, groups' "right to exclude." (2) Many aspects of Professor Inazu's arguments no doubt strike some readers as promising, while other readers will find them provocative.

A thorough review of Liberty's Refuge lies beyond the scope of this essay, which has a very limited objective: to consider a few examples illustrating the additional insights that a feminist lens might bring to the analysis. Consistent with my modest agenda, the lens that I use is a very elementary one, without refractions reflecting the many variations in feminist theory. (3) Instead, this essay undertakes merely what Katharine Bartlett once called "ask[ing] the woman question." (4)

With this objective in mind, I have selected three specific issues: Professor Inazu's treatment of the always-contested divide between public and private, his overly narrow reading of the Supreme Court's intimate association doctrine, and his failure to distinguish exclusion from subordination. Although asking the woman question illuminates some of what is absent from Professor Inazu's analysis, I offer these comments with both collegial enthusiasm for his scholarship and commitment to "engaging" with the ideas that Liberty's Refuge sets forth. (5)

1. OF PUBLIC AND PRIVATE

   Professor Inazu offers the following definition of the constitutional right he seeks to recover:

   The right of assembly is a presumptive right of individuals to form and participate in peaceable, noncommercial groups. The right is rebuttable when there is a compelling reason for thinking that the justifications for protecting assembly do not apply (as when the group prospers under monopolistic or near-monopolistic conditions). (6) When claiming this right for groups, Professor Inazu asserts a clear divide between public and private. Accordingly, organizations like the Jaycees (7) and Boy Scouts (8) should be able to invoke the freedom of assembly because they are "private groups," not "public accommodations." (9) Thus, he criticizes the Supreme Court's reliance on freedom of association in Roberts v. Jaycees (10) and its decision that the organization must allow women to become full members, despite more exclusive gender-based rules. (11) Although Professor Inazu supports the outcome in Boy Scouts of America v. Dale, (12) in which the Court permitted the exclusion of an openly gay scoutmaster, he disagrees with aspects of the Court's approach, including its reliance on expressive association (13) and its failure to question whether the Boy Scouts may properly be classified as a public accommodation under New Jersey law. (14)

   Despite the clarity that Professor Inazu attributes to the distinction between private groups and public accommodations, as he understands these categories, he ignores--and thus completely erodes--any public/private dichotomy when he turns his attention to asserted infringements of rights by the state. In two cases against which he takes particularly sharp aim, Christian Legal Society (CLS) v. Martinez (15) and Chi Iota v. City University of New York, (16) the alleged violations of the freedom of assembly arose from the failure of the schools in question, both state institutions, to provide affirmative support for exclusive groups, whose membership rules conflicted with the schools' policies of nondiscrimination. Thus, for example, in Martinez, the Court upheld the decision of Hastings College of the Law (a division of the university of California) to withhold benefits such as funding and the use of its logo from an organization that refused to accept members who did not share its beliefs about religion and sexual activities, in violation of the school's "acceptance of all comers" policy for officially recognized student groups. (17) In explaining this result, the majority observed that, although the "First Amendment shields CLS against state prohibition of the organization's expressive activity, ... CLS enjoys no constitutional right to state subvention of its selectivity." (18) Similarly, in Chi Iota, the court reasoned that the refusal of the public university (19) "to subsidize the [male-only] Fraternity's activities does not constitute a substantial imposition on the group's associational freedom." (20)

   Professor Inazu's vision for protecting groups' freedom to determine their membership is one that privileges such organizations' private preferences even as it demands the support of public institutions. For example, when criticizing Martinez and Chi Iota, Professor Inazu alludes only briefly to the issue of state subsidization, emphasizing instead the importance of public support to the exercise of private groups' protected First Amendment right:

   Sometimes a group must choose between receiving benefits and adhering to its policies at the cost of those benefits. But withholding some benefits (like access to meeting space or e-mail lists or the opportunity to be part of a public forum) can be akin to stamping out a group's existence. After Martinez, the Hastings Christian Group That Accepts All Comers can exist, and Christian Legal Society for Hastings Law Students That Can Sometimes Meet on Campus as a Matter of University Discretion if Space Is Available but Can't Recruit Members at the Student Activities Fair can exist. But the Hastings Christian Legal Society--whose views and purposes are in no way sanctioned by and able to be explicitly disavowed by Hastings--cannot. (21) Professor Inazu's assumption of a permenable boundary between public institutions and private groups omits reference to an extensive feminist literature on the would-be public/private divide. Feminist legal theorists have long challenged this purported distinction and its resulting subordination of women, with family law's insistence on a "private realm" (22) emerging as a recurring theme in such scholarship. (23) Yet, for me, asking the woman question about Professor Inazu's conceptualization of the freedom of assembly calls to mind, first and foremost, the Supreme Court's abortion-funding cases. (24) These cases held that even constitutional rights recognized as fundamental (25) do not give rise to entitlements to state support, even when such state support is necessary to permit exercise of the right. (26) Thus, even if the absence of support would extinguish for indigent women practical realization of the right to choose abortion, the state can express its own anti-abortion value judgments in how it directs its funding. (27) In clearly signaling its understanding of abortion as a negative right, (28) the Court invoked additional examples to make the point, observing that the parental right to choose private schooling for one's children does not require state-subsidized tuition. (29) Later cases have underscored the Court's steadfast preference for interpreting constitutional guarantees as negative rights, affording no claim to affirmative governmental support. (30) Put differently, Martinez, Chi Iota, and the abortion-funding cases are consistent in their treatment of constitutional rights, state value judgments, and public support.

   Professor Inazu fails to explain why he assumes the freedom of assembly constitutes a positive right that compels state support, such as funding for the CLS from Hastings College of the Law or use of the school's logo. (31) Just as withholding financial support from abortion provides a way for a state to express its value judgment "to favor normal childbirth," (32) Hastings, a public school...