Functional intimate association analysis: A doctrinal shift to save the Roberts framework

Duke Law Journal

Volumn 61, Issue 4, 2012, Pages 903-940

  Roling, Joshua P ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 84859337501     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (104)

1. The College of Staten Island is a senior college within the City University of New York. Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 443 F. Supp. 2d 374, 376 (E.D.N.Y. 2006), vacated, 502 F.3d 136 (2d Cir. 2007).
2. Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 443 F. Supp. 2d 374 (E.D.N.Y. 2006), vacated, 502 F.3d 136 (2d Cir. 2007).
3. Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136, 147 (2d Cir. 2007).
4. John D. Inazu, The Unsettling "Well-Settled" Law of Freedom of Association, 43 CONN. L. REV. 149, 191 (2010).
5. Bell v. Maryland, 378 U.S. 226, 313 (1964) (Goldberg, J., concurring).
6. Roberts v. U.S. Jaycees, 468 U.S. 609 (1984).
7. See, e.g., Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 546 (1987) ("In determining whether a particular association is sufficiently personal or private to warrant constitutional protection, we consider factors such as size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship.").
8. Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 442 (3d Cir. 2000) ("In determining the nature of a given relationship, relevant factors to consider include a group's 'size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent.'" (quoting Roberts, 468 U.S. at 620))
9. La. Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1494 (5th Cir. 1995) ("In determining whether a particular association is sufficiently private to warrant constitutional protection, as well as the scope of that protection, the Court has considered several factors, including: (1) the organization's size; (2) its purposes; (3) the selectivity in choosing its members; (4) the congeniality among its members; (5) whether others are excluded from critical aspects of the relationship; and, (6) other characteristics that in a particular case may be pertinent.").
10. See infra Posing its members; (4) the congeniality among its members; (5) whether others are excluded from critical aspects of the relationship; and, (6) other characteristics that in a particular case may be pertinent.")art II.A.
11. Because both the district court and the court of appeals organized their analyses around the Roberts factors, the decisions provided little insight into the actual role that the group played in the life of its members and did very little to answer the key question of whether the group provided the benefits that should have entitled it to constitutional protection
12. Roberts, 468 U.S. at 618-19.
13. See, e.g., Clinton N. Daggan, Case Comment, Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, 53 N.Y.L. SCH. L. REV. 627, 628 (2008/09) ("This case comment contends that the Second Circuit's analysis was too stringent and is inconsistent with the United States Supreme Court's and other federal circuit courts' 'spectrum' analysis.").
14. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).
15. See John D. Inazu, The Strange Origins of the Constitutional Right of Association, 77 TENN. L. REV. 485, 517 (2010) ("It was clear that the Court had broken new constitutional ground in NAACP v. Alabama, but specifying exactly what had taken place proved elusive.").
16. Griswold v. Connecticut, 381 U.S. 479 (1965).
17. Kenneth L. Karst, The Freedom of Intimate Association, 89 YALE L.J. 624, 625 (1980).
18. For example, the Court explained the rationale for recognizing the right of intimate association by reasoning: "[T]he 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." Roberts v. U.S. Jaycees, 468 U.S. 609, 619 (1984).
19. See Roberts, 468 U.S. at 617 ("Our decisions have referred to constitutionally protected 'freedom of association' in two distinct senses.").
20. See infra Part I.C.
21. Roberts, 468 U.S. at 618-19.
22. See Zablocki v. Redhail, 434 U.S. 374, 386 (1978) ("It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships.... Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection. And, if appellee's right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place.").
23. See Griswold v. Connecticut, 381 U.S. 479, 485 (1965) ("The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship.").
24. See Moore v. City of East Cleveland, 431 U.S. 494, 504 (1977) (plurality opinion) ("Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.").
25. See Wisconsin v. Yoder, 406 U.S. 205, 214 (1972) ("[A] State's interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children....").
26. Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925) ("The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.").
27. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-61 (1958) ("Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.").
28. Gilmore v. City of Montgomery, 417 U.S. 556 (1974).
29. Roberts v. U.S. Jaycees, 468 U.S. 609, 619 (1984).
30. See, e.g., Quilloin v. Walcott, 434 U.S. 246, 255 (1978) ("We have little doubt that the Due Process Clause would be offended '[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest.'" (alteration in original) (quoting Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 862-63 (1977) (Stewart, J., concurring in the judgment))).
31. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) ("This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause....").
32. Nor are biological families always entitled to protection. See, e.g., Quilloin, 434 U.S. at 255 (rejecting a biological father's due process challenge to the adoption of his illegitimate child by another man because the biological father had never sought actual or legal custody of the child).
33. Stanley v. Georgia, 394 U.S. 557, 565 (1969) (holding unconstitutional a Georgia statute that prohibited the possession of obscene materials within the home).
34. Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987).
35. Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (quoting Maynard v. Hill, 125 U.S. 190, 211 (1888)) (internal quotation mark omitted).
36. Roberts v. U.S. Jaycees, 468 U.S. 609, 619 (1984) ("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....").
37. Duarte, 481 U.S. at 545.
38. Gilmore v. City of Montgomery, 417 U.S. 556, 575 (1974) (quoting Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 179-80 (1972) (Douglas, J., dissenting)) (internal quotation marks omitted).
39. Roberts, 468 U.S. at 620.
40. Unruh Civil Rights Act, CAL. CIV. CODE § 51 (West 1982).
41. Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 546-47 (1987).
42. City of Dallas v. Stanglin, 490 U.S. 19 (1989).
43. La. Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483 (5th Cir. 1995).
44. La. Debating, 42 F.3d at 1497-98.
45. Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435 (3d Cir. 2000).
46. Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136, 145-48 (2d Cir. 2007).
47. Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 443 F. Supp. 2d 374, 386 (E.D.N.Y. 2006), vacated, 502 F.3d 136 (2d Cir. 2007).
48. Chi Iota Colony, 502 F.3d at 146.
49. Kevin J Worthen, One Small Step for Courts, One Giant Leap for Group Rights: Accommodating the Associational Role of "Intimate" Government Entities, 71 N.C. L. REV. 595, 598-99 (1993).
50. See, e.g., Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 443 F. Supp. 2d 374, 385 (E.D.N.Y. 2006) ("[T]he Third Circuit's [Pi Lambda Phi] decision does not give the court clear direction, particularly since the Supreme Court has not established a bright line test when considering a group's size."), vacated, 502 F.3d 136 (2d Cir. 2007).
51. Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 546-47 (1987).
52. La. Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1497 (5th Cir. 1995).
53. N.Y. State Club Ass'n v. City of New York, 487 U.S. 1 (1988).
54. See Chi Iota Colony, 443 F. Supp. 2d at 385 ("In determining whether a group is intimate, the court should look at how small it is numerically in comparison to the potential pool of applicants.").
55. Population Finder: New York City, New York, U.S. CENSUS BUREAU, http://factfinder.census.gov/servlet/SAFFPopulation?_event=ChangeGeoContext&geo_id=16000US3651000&_geoContext=01000US&_street=&_county=New+York&_cityTown=New+York&_state=04000US36&_zip=&_lang=en&_sse=on&ActiveGeoDiv=geoSelect&_useEV=&pctxt=fph&pgsl=010&_submenuId=population_0&ds_name=null&_ci_nbr=null&qr_name=null®=null%3Anull &_keyword=&_industry= (last visited Dec. 19, 2011) (providing the population of New York City in the 1990 census).
56. Population Finder: New Orleans City, Louisiana, U.S. CENSUS BUREAU, http://factfinder.census.gov/servlet/SAFFPopulation?_event=Search&geo_id=16000US3651000&_geoContext=01000US%7C04000US36%7C16000US3651000&_street=&_county=new+orleans&_cityTown=new+orleans&_state=04000US22&_zip=&_lang=en&_sse=on&ActiveGeoDiv=geoSelect&_useEV=&pctxt=fph&pgsl=160&_submenuId=population_0&ds_name=null&_ci_nbr=null&qr_name=null®=null%3Anull&_keyword=&_industry= (last visited Dec. 19, 2011) (providing the population of New Orleans in the 1990 census).
57. Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 546 (1987).
58. Chi Iota Colony, 443 F. Supp. 2d at 385.
59. Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136, 145 (2d Cir. 2007) ("The Fraternity currently has nineteen members, eighteen of whom are CSI students and one of whom is not. It aspires to one day have about fifty pledges per semester. But the Fraternity places no limit on membership size.").
60. See Gregory F. Hauser, Intimate Associations Under the Law: The Rights of Social Fraternities To Exist and To Be Free from Undue Interference by Host Institutions, 24 J.C. & U.L. 59, 77 (1997) ("Thus, the clear weight of the case law indicates that it is an individual chapter's size that must be assessed and that college social fraternity chapters are well within the 'relatively small' requirement." (quoting La. Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1497 (5th Cir. 1995)).
61. Nancy S. Horton, Traditional Single-Sex Fraternities on College Campuses: Will They Survive in the 1990s?, 18 J.C. & U.L. 419, 436 (1992) ("Courts may reach an opposite conclusion, however, when the scope of the analysis is limited to the specific local chapter at the particular collegiate campus and undergraduate chapters are distinguished from alumni chapters.").
62. Scott Patrick McBride, Comment, Freedom of Association in the Public University Setting: How Broad Is the Right To Freely Participate in Greek Life?, 23 U. DAYTON L. REV. 133, 149 (1997) ("The Supreme Court recognizes that it is the size of the local chapter, not the entire national organization that weighs into the determination of intimacy." (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 621 (1984))).
63. See, e.g., La. Debating, 42 F.3d at 1497 ("The Clubs are managed and controlled locally by their members; either directly, by an elected Board of Governors, or by both; none of the Clubs is associated with or controlled by a national organization.").
64. For example, the Fifth Circuit in Louisiana Debating concluded that the clubs at issue were sufficiently private to warrant constitutional protection based on the fact that the clubs sought "to maintain an atmosphere in which their members [could] enjoy the comradery and congeniality of one another." La. Debating, 42 F.3d at 1497.
65. Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).
66. Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136, 146 (2d Cir. 2007).
67. Chi Iota Colony, 502 F.3d at 146 ("According to its president, Fraternity brothers form 'deep attachments and commitments' and share 'a community of thoughts, experiences, beliefs and distinctly personal aspects of their lives.' But the same can be said of nearly any student group in which members become close friends.").
68. Roberts v. U.S. Jaycees, 468 U.S. 609, 619-20 (1984) ("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 distinctively personal aspects of one's life.").
69. La. Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1493 n.15 (5th Cir. 1995).
70. Roberts, 468 U.S. at 621.
71. Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 547 (1987).
72. See, e.g., La. Debating, 42 F.3d at 1496 ("Finally, whether to admit the prospective member is voted on by the general membership. A very limited number of objections deny membership....").
73. See, e.g., Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 442 (3d Cir. 2000) ("[T]he Chapter actively recruits new members from the University population at large and it is not particularly selective in whom it admits. The international organization of Pi Lambda Phi strongly encourages its chapters to recruit new members aggressively so as to continue the growth of the organization.").
74. Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136, 145-46 (2d Cir. 2007).
75. OXFORD DICTIONARY OF ENGLISH 1613 (Angus Stevenson ed., 3d ed. 2010).
76. Cf. Roberts v. U.S. Jaycees, 468 U.S. 609, 621 (1984) ("Moreover, much of the activity central to the formation and maintenance of the association involves the participation of strangers to that relationship.").
77. Because no group is likely to be typical, these categories are intended only to be illustrative and not comprehensive
78. See Chi Iota Colony, 502 F.3d at 146 ("Decisions about whether to offer or revoke membership occur in private, as do the ceremonies in which prospective members become pledges and pledges become full members.")
79. See, e.g., Chi Iota Colony, 502 F.3d at 146 ("Weekly business meetings and frequent informal gatherings also take place only in the presence of members.")
80. See, e.g., Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 547 (1987) ("Members are encouraged to invite business associates and competitors to meetings. At some Rotary Clubs, the visitors number in the tens and twenties each week.... The clubs are encouraged to seek coverage of their meetings and activities in local newspapers." (quoting Appendix to Jurisdictional Statement at G-24, Duarte, 481 U.S. 537 (No. 86-421)) (internal quotation marks omitted))
81. Roberts, 468 U.S. at 621 ("[D]espite their inability to vote, hold office, or receive certain awards, women affiliated with the Jaycees attend various meetings....").
82. See, e.g., La. Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1493 n.15 (5th Cir. 1995) ("Only existing members may propose a new member.").
83. See, e.g., Chi Iota Colony, 502 F.3d at 146 ("Many rush events are held in public places such as local cafés or pool halls. During its February 2003 rush, the Fraternity planned several events requiring the interaction of current and prospective members with non-members-a party, as well as outings to a strip club, a karaoke bar, and a laser tag establishment.").
84. See Roberts, 468 U.S. at 621 ("[N]umerous nonmembers 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....")
85. Chi Iota Colony, 502 F.3d at 146 ("The Fraternity gives parties, sometimes at a profit, at which non-members-including women-are encouraged to attend.").
86. Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 442 (3d Cir. 2000) ("The Chapter also invites members of the public into its house for social activities and participates in many public University events.").
87. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990).
88. The pertinent part of the Act in Roberts provided: "It is an unfair discriminatory practice... [t]o deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex." MINN. STAT. § 363.03(3) (1982).
89. see also Roberts, 468 U.S. at 615 (examining claims under the Act). The Act defined "[p]lace of public accommodation" as a "business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public." MINN. STAT. § 363.01(18) (internal quotation marks omitted).
90. see also Roberts, 468 U.S. at 615 (examining the Act's definition).
91. La. Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1497 (5th Cir. 1995) ("[T]hey seek to maintain an atmosphere in which their members can enjoy the comradery and congeniality of one another.").
92. See Roberts, 468 U.S. at 618-19 ("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." (citations omitted)).
93. Roberts, 468 U.S. at 619.
94. Cf. Boy Scouts of Am. v. Dale, 530 U.S. 640, 650 (2000) (explaining that "[t]he values the Boy Scouts seeks to instill" are grounded in the "Scout Oath and Law.").
95. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 237 (1990) (quoting Roberts, 468 U.S. at 618-19).
96. La. Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1496 (5th Cir. 1995).
97. Roberts, 468 U.S. at 618.
98. See, e.g., Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136, 147 (2d Cir. 2007) ("The associational interests of the Fraternity differ from the interests asserted by the social groups that were plaintiffs in [Louisiana Debating], on which the district court relied. In that case,.... [e]ach club had its own unmarked, private facility, which nonmembers were strictly prohibited from using.").
99. La. Debating, 42 F.3d at 1496 ("Each club has only one facility, which is maintained for the exclusive use of its members and guests. No signs outside the Clubs' buildings identify the locations to the public. Nonmembers are strictly prohibited from using the facilities." (footnote omitted)).
100. Roberts, 468 U.S. at 619-20.
101. Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) ("As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and openended.").
102. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 849 (1992) ("The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office.").
103. Cf. John D. Inazu, Op-Ed., Siding with Sameness, NEWS & OBSERVER (Raleigh), July 1, 2010, at 9A ("The court should have decided [Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010)] by choosing between two constitutional visions: a radical sameness that destroys dissenting traditions (religious, sexual or otherwise), or the destabilizing difference of a meaningful pluralism.").
104. Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting).