John Inazu’s “Confident Pluralism” criticizes existing
constitutional doctrine for reasons sketched in my prior post. Here I address
another concern with his analysis.
In my view, the Court’s distinction between expressive and
non-expressive associations was motivated by a concern that ordinary commercial
enterprises would invoke the right to justify policies of racial (and, later,
other) discrimination. (And even if not motivated by that concern, it is
relevant to the construction of good doctrine.)
Consider, then, a restaurant owner who wants to discriminate
against African-Americans. (When I teach this stuff, I use Lester Maddox’s “Pickrick
Restaurant” as my example.) He claims that he wants to maintain a “safe space”
for white people. And, he creates a “membership rewards” program, as have many
restaurants, in which members pile up points for rewards – ten visits and you
get a free dessert, for example. On Inazu’s account, I think, the restaurant
owner has a good claim that he and his patrons are engaging in constitutionally
protected association.
Of course that’s not the end of the analysis that Inazu
prescribes. He allows infringements on the right of association to be justified
by compelling government interests, and treats the interest in promoting racial
non-discrimination as compelling. That, though, opens up some – to me – troubling
possibilities, which are more or less explicitly raised in Justice Alito’s
opinion for the Court in Hobby Lobby.
Shift the example to a “safe space for men” or “safe space
for straights” restaurant. The question becomes, Is the government interest in
promoting nondiscrimination on the basis of gender or sexual orientation
compelling? In Hobby Lobby Justice
Alito carefully (in my view) confined his response to the argument that the
Court’s interpretation of the Religious Freedom Restoration Act would require
the courts to provide exemptions from antidiscrimination laws to all who
objected on religious grounds to complying with such laws, saying only that
that wouldn’t be true with respect to the compelling interest in racial nondiscrimination,
and saying nothing about the strength of the interest in other forms of nondiscrimination.
(And, we know from other doctrine, the standard for determining when government action is unconstitutionally
discriminatory is “compelling” for race, and something different for gender and
sexual orientation, which suggests what the answer would be to the claim for a
religious accommodation to nondiscrimination laws dealing which those
categories.)
For myself, I find the prospect of doing comparative “compellingness”
analysis quite unattractive – and, to some extent, inconsistent with Inazu’s
prescription for tolerance and humility. That’s another reason, I think, for saying
that, categorically, commercial enterprises cannot claim rights of association.