December 16, 2017

It's Freedom of association, stupid

YouGov has a poll out indicating that Americans are 'torn' between religious freedom and something they refer to as marriage equality.  It's rife with flaws. First and foremost, this is not a matter of polling, it's a Constitutional matter.  Additionally, polling should never trump common sense even though public opinion often runs counter to basic intuitive logic. That's a formula for mob rule which runs counter to democratic principals (the latter point is a debate for another day).

Here's some of the YouGov findings;
The Supreme Court is wrestling with balancing religious freedom and equal rights in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, deciding whether a baker’s First Amendment religious protections permit him to violate Colorado anti-discrimination regulations and refuse to create a wedding cake for a same-sex couple. Americans are torn, too. But on balance, they seem to come down on the side of religion...

But the more important distinction, perhaps, may be that a plurality sees a violation of the First Amendments religious freedom protections if someone were to be required to bake a wedding cake for a same-sex couple. That is particularly true for Republicans, 74% of whom say this would violate First Amendment religious freedom. 47% of independents also agree, as do one in five Democrats.
While there appears to be a general support for the law, there is a freedom of religion implication that people are not comfortable with embedded in the law. I haven't heard anyone argue this point however; there is also a freedom of association violation within the law.

The Constitution protects both rights, though with association the protection is implicit not explicit;
Clearly, the First Amendment protects the individual rights to freely exercise one’s religion, speak freely, publish freely, peaceably assemble, and petition the government. Technically, the freedom of association is not mentioned. It is sometimes subsumed under the freedom of assembly but usually by limiting it to things such as trade unions and collective bargaining.

Legally, the freedom of association is considered to be a fundamental right protected by the Constitution. In the Supreme Court case of N.A.A.C.P. v. Alabama(1958), a unanimous Court ruled that the NAACP did not have to reveal to the Alabama attorney general the names and addresses of the NAACP members in the state because it would violate the NAACP members’ freedom of association. Writing for the Court, Justice John Marshall Harlan II said in the decision that
immunity from state scrutiny of membership lists … is here so related to the right of members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment. [Alabama] has fallen short of showing a controlling justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of membership lists is likely to have….
Freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” ensured by the Due Process Clause of the Fourteenth Amendment.
The thing is, if freedom of association is protected, does it not extend to commerce?  Am I not entitled to decide with whom I want to conduct business?  I don't want to engage in commerce with the mafia, can a court order compel me to do so?  If I choose to turn down business I am using my freedom to exclude association with certain people.  Clearly that's a tenuous argument or it would have successfully been put forward before now.  I'm just not sure why there isn't a valid case to be made for the idea.

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