Reaching a New Balance in Freedom of Association: The Goods Approach

Abstract

Establishing a better balance in questions of discrimination by associations is an urgent task to realize a well-functioning, truly inclusive pluralist society. While associations continue to claim exceptions from anti-discrimination law, membership in voluntary private associations can provide access to goods that might considerably influence life chances. Restrictive membership policies may thus conflict with anti-discrimination efforts of the liberal democratic state. Upon critical examination, I find that neither the current U.S. Supreme Court approach that protects a group’s explicit message, nor the alternative approach that would shield all predominantly expressive groups, adequately protects the important liberty, equality, and democracy interests at stake. I therefore propose a goods approach that develops a more sophisticated conceptualization of associational goods by devising three parameters to operationalize the harm caused by exclusion: their materiality, availability, and valence. This avoids the stark dichotomy between extensive protection and intrusive regulation of associations by introducing the option of decoupling goods from membership, thereby offering a new logic for balance that allows all citizens a sufficient set of opportunities while not unduly restricting associational freedom of expression.