Post by Tamrin on Oct 21, 2008 6:31:35 GMT 10
Perceptions concerning Freedom of Association have often been raised to legitimise the exclusion of women from mainstream Freemasonry. Putting aside our inclusive rhetoric (the law does not prohibit hypocrisy) and the vexed dilemma whereby the freedom to exclude all people of a particular category stifles the freedom to admit some worthy individuals, we find this "freedom" is most clearly held in America, where it is enshrined in their Bill of Rights. Beyond such specific protections, the jurisdictions of the U.S.A., the U.K. and Aust-ralia generally enjoy a degree of comity, in considering precedents. America, then, is where we might expect to find the strongest expression of that freedom, overriding other Human Rights legislation. Even there we find a distinction between freedom of intimate association and freedom of expressive association and also find those freedoms depend on the nature, size and purpose of the group in question.
"3.2 Constitutional Right to Select Associates", under "MASONIC MEMBERSHIP CASES", in:
The Courts and Freemasonry
Case Histories that Have or Could Affect Freemasonry
by Alphonse Cerza, 1986, Anchor Communications, Highland Springs, Virginia, pp.35 / 40
The Courts and Freemasonry
Case Histories that Have or Could Affect Freemasonry
by Alphonse Cerza, 1986, Anchor Communications, Highland Springs, Virginia, pp.35 / 40
The right of associations to prescribe their own rules relating to the persons it will accept as members is based on the fundamental right of all persons to select the persons with whom they will associate. Therefore, a brief consideration of this constitutional right is in order.
There were a number of cases where the United States Supreme Court intimated that there was a constitutional right to select one's associates. But it was not until it decided National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1959), that the right was stated clearly when the court said on page 460:
In Bell v. Maryland, 378 U.S. 226 (1963), Mr. Justice Goldberg said on page 312:
In Moose Lodge v. Irvis, Mr. Justice Douglas, in a dissenting opinion, said on page 179 to 180:
In this connection Wright v. Salisbury Club, 479 Fed. Supp. 378 (1979), should be consulted because it lists and discusses the various tests which have been used by the courts to determine what is a "private club" under the statute. The decision, however, was reversed in 632 F. 2d 309 (1980), on the ground that the Club had no selectivity in its membership policy, actively solicited members with public advertising, and the Club served the interest of the developer of the Club.
There would be no question that the Craft would fall under the classification as a Private Club under the Civil Rights Act.
Closely related to his subject is the right of privacy which has been recognised in Griswold v. Connecticut, 381 U.S. 479 (1965), and Mapp v. Ohio, 367 U.S. 643 (1960).
One June 26, 1984, The United States Supreme Court decided the case entitled Roberts vs. United States Jaycees. The Jaycees, a group sometimes described as a Junior Chamber of Commerce, restricted its membership to males only between the ages of 18 and 35. Several local Chapters in Minnesota violated this rule and admitted females as members. When the national organization threatened to revoke the Charters of these Chapters a complaint was filed with the Department of Human Rights claiming discrimination under the terms of the state statute. The organization defended the complaint on the ground that the right to select one’s associates is a constitutional right and that it did not violate the state statue.
This is a vital legal question. In 1986, for example, a service organization in one of the eastern states was presented with this problem and the court held that women could not be barred from membership.
The language of the court in the Roberts case, making certain distinctions on the application of the general rule, is important and may have relevancy in the future. It is as follows:
There were a number of cases where the United States Supreme Court intimated that there was a constitutional right to select one's associates. But it was not until it decided National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1959), that the right was stated clearly when the court said on page 460:
It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseperable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech ... Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious, or cultural matters.This right, of course, does have some reasonable limitations. For example, it was held in New York ex rel Bryant v. Zimmerman, 278 U.S. 63 (1928) that reasonable regulation of associations is valid. The enactment of the Civil Rights Act has effected this basic right insofar as some human relationships are concerned. A distinction has been made, and rightfully so, between public contacts and social contacts between persons. Here are some indications in the cases of how fundamental is the private right of association.
In Bell v. Maryland, 378 U.S. 226 (1963), Mr. Justice Goldberg said on page 312:
Prejudice and bigotry in any form is regrettable, but it is the constitutional right of every person to close his home or club to any person or to choose his social intimates and business partners solely on the basis of personal prejudices including race. These and other rights pertaining to privacy and private associations are themselves constitutionally protected liberties.In Runyon v. McCrary, 427 U.S. 160 (1975), where the court was considering whether a private school was compelled to accept all students irrespective of race, the court made it clear that the cases under consideratioj (page 167), "do not present any question of the right of a private social organization to limit its membership on racial or any other ground."
In Moose Lodge v. Irvis, Mr. Justice Douglas, in a dissenting opinion, said on page 179 to 180:
My view of the First Amendment and the related guarantees of the Bill of Rights is that they create a zone of privacy which precludes government from interfering with private clubs or groups. The associational rights which our system honors permit all white, all black, and all yellow clubs to be formed. They also permit all Catholic, all Jewish, or all agnostic clubs to be established. Government may not tell a man or woman who his associates must be. The individual can be as selective as he desires. So the fact that the Moose Lodge allows only Caucasians to join or come as guests is constitutionally irrelevant as the decisions of the Black Muslims to admit to their service only members of their race.The Civil Rights Act of 1964 excludes from its application "private clubs" (section 201e). This was intended to preserve the right of persons to select their associates in private and social relationships. What is a "private club" has been the subject of many court cases as persons have tried to evade the application of the Act. (See an extensive annotation on this subject in 8 ALR Fed. 634-669, and 14 C.J.S. Supple. 44).
In this connection Wright v. Salisbury Club, 479 Fed. Supp. 378 (1979), should be consulted because it lists and discusses the various tests which have been used by the courts to determine what is a "private club" under the statute. The decision, however, was reversed in 632 F. 2d 309 (1980), on the ground that the Club had no selectivity in its membership policy, actively solicited members with public advertising, and the Club served the interest of the developer of the Club.
There would be no question that the Craft would fall under the classification as a Private Club under the Civil Rights Act.
Closely related to his subject is the right of privacy which has been recognised in Griswold v. Connecticut, 381 U.S. 479 (1965), and Mapp v. Ohio, 367 U.S. 643 (1960).
One June 26, 1984, The United States Supreme Court decided the case entitled Roberts vs. United States Jaycees. The Jaycees, a group sometimes described as a Junior Chamber of Commerce, restricted its membership to males only between the ages of 18 and 35. Several local Chapters in Minnesota violated this rule and admitted females as members. When the national organization threatened to revoke the Charters of these Chapters a complaint was filed with the Department of Human Rights claiming discrimination under the terms of the state statute. The organization defended the complaint on the ground that the right to select one’s associates is a constitutional right and that it did not violate the state statue.
This is a vital legal question. In 1986, for example, a service organization in one of the eastern states was presented with this problem and the court held that women could not be barred from membership.
The language of the court in the Roberts case, making certain distinctions on the application of the general rule, is important and may have relevancy in the future. It is as follows:
Our decisions have referred to constitutionally protected “freedom of association” in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment-speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.
The intrinsic and instrumental features of constitutionally protected association may, of course, coincide. In particular, when the State interferes with individuals’ selection of those with whom they wish to join in a common endeavor, freedom of association in both its forms may be implicated. The Jaycees contend that this is such a case. Still, the nature and degree of constitutional protection afforded freedom of association may vary depending on the extent to which one or the other aspect of the constitutionally protected liberty is at stake in a given case. We therefore find it useful to consider separately the effect of applying the Minnesota statute to the Jaycees on what could be called its members’ freedom of intimate association and their freedom of expressive association.
The Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the state.
Without precisely identifying every consideration that may underlie this type of constitutional protection, we have noted that certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State. Moreover, the constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one’s identity that is central to any concept of liberty.
The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family-marriage, e.g., Zablocki v. Redhail, supra; childbirth, e.f., Carey v. Population Services Int’l, supra; the raising and education of children, e.g., Smith v. Organization of Foster Families, supra; and cohabitation with one’s relatives, e.g., Moore v. City of East Cleveland, supra. Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctly personal aspects of one’s life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation. and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty. Conversely, an association lacking these qualities—such as a large business enterprise—seems remote from the concerns giving rise to this constitutional protection. Accordingly, the Constitution undoubtedly imposes constraints on the State’s power to control the selection of one’s spouse that would not apply to regulations affecting the choice of one’s fellow employees. Compare Loving v. Virginia, 388 U.S. 1, 12 (1967) with Railway Mail Ass’n v. Corsi, 326 U.S. 88, 93-94 (1945).
Between these poles, of course, lies a broad range of human relationships that may make greater or lesser claims to constitutional protection from particular incursions by the State. Determining the limits of state authority over an individual’s freedom to enter into a particular association therefore unavoidably entails a careful assessment of where that relationship’s objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments. See generally Runyon v. McCrary, 427 U.S. 160, 187-189 (1976) (POWELL, J., concurring).We need not mark the potentially significant points on this terrain with any precision. We note only that factors that may be relevant include size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent. In this case, however, several features of the Jaycees clearly place the organization outside of the category of relationships worthy of this kind of constitutional protection.
The undisputed facts reveal that the local chapters of the Jaycees are large and basically unselective groups. At the time of the state administrative hearing, the Minneapolis chapter had approximately 430 members, while the St. Paul chapter had about 400. Report A-99, A100. apart from age and sex, neither the national organization nor the local chapters employ any criteria for judging applicants for membership, and new members are routinely recruited and admitted with no inquiry into their backgrounds. See I Tr. of State Administrative Hearing 124-132, 135-136, 174-176. In fact, a local officer testified that he could recall no instance in which an applicant had been denied membership on any basis other than age or sex. Id., at 135. Cf. Tillman v. Wheaton-Haven Recreational Ass’n. 410 U.S. 431, 438 (1978) (organization whose only selection criteria is race has “no plan or purpose of exclusiveness” that might make it a private club exempt from federal civil rights statute); Sullivan v. Little Hunting Park, Inc., 396 U.S. 299, 236 (1969); Daniel v. Paul, 395 U.S. 298, 302 (1969) (same). Furthermore, despite their inability to vote, hold office, or receive certain awards, women affiliated with the Jaycees attend various meetings, participate in selected projects, and engage in many of the organization’s social functions. See Tr. 58. Indeed, numerous non-members of both genders regularly participate in a substantial portion of activities central to the decision of many members to associate with one another, including many of the organization’s various community programs, awards ceremonies, and recruitment meetings. See, e.g., 305 N. w. 2d, at 772; Report A102, A103.
In short, the local chapters of the Jaycees are neither small nor selective. Moreover, much of the activity central to the formation and maintenance of the association involves the participation of strangers to that relationship. Accordingly, we conclude that the Jaycees chapters lack the distinctive characteristics that might afford constitutional protection to the decisions of its members to exclude women. We turn therefore to consider the extent to which application of the Minnesota statute to compel the Jaycees to accept women infringes the group’s freedom of expressive association.