This is the final week of oral argument in what is shaping up to be one of the most significant Supreme Court terms in memory. Today, the high court hears argument in California Democratic Party v. Jones, involving a challenge to California's open primary law. On Wednesday, the final day of argument for the term, the Court will consider in Boy Scouts of America v. James Dale whether New Jersey may compel the Boy Scouts to reinstate an avowed homosexual as an adult assistant scoutmaster. Both cases involve freedom of association rights that lie at the core of the First Amendment and, ultimately, at the heart of our republican form of government.
It is axiomatic, but bears repeating, that the only legitimate government among human beings who are created equal, to borrow the language of the Declaration of Independence, is one based on consent. In a republican form of government such as ours, that consent is manifested primarily through elections, in which candidates with differing ideas about the role and priorities of government compete for support. The First Amendment's protection of the freedom of speech was designed primarily to protect political speech because, as the Supreme Court has previously recognized, such speech "is the essence of self-government."
Inherent in the freedom of speech, and also in the parallel First Amendment protection of the right peaceably to assemble and petition the government for the redress of grievances, is the right to associate with others of like mind in order to magnify such political speech and render meaningful the consent that results from free elections. And there is perhaps no more fundamental tenet of the freedom of association than the right of the association itself to determine who shall be admitted to membership.
During debate in the convention that gave us our Constitution, for example, Gouverneur Morris noted that "every Society from a great nation down to a club had the right of declaring the conditions on which new members should be admitted." As the Supreme Court has recognized, "there can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire" because "[f]reedom of association . . . plainly presupposes a freedom not to associate."
The California Democratic Party case involves the quintessential political association — the political party. Primary elections in California are the vehicle by which such political parties select their standard-bearer. Until Proposition 198 was adopted, the freedom of political parties to associate "plainly presuppose[d] a freedom not to associate." In other words, political parties were free to require that only party members could participate in the most fundamental choice made by the association, the choosing of a candidate to represent the party's views in an election. After Proposition 198 was adopted, political parties no longer have that right and, to that extent, the consent function of elections is undermined.
Much more is at stake than just the associational rights of political parties. The lower court noted that Proposition 198 was designed to decrease the "election of party hard-liners," promote the election of "more moderate problem-solvers," and avoid "legislative gridlock." Our founders did not see legislative gridlock as a problem, however, but rather as security against government tyranny and majority faction. They designed a constitution with checks and balances, deliberately promoting partisan strife and legislative gridlock in order to block single-party domination, because they believed that majority tyranny was a much greater threat than legislative gridlock.
Boy Scouts involves a different kind of association, but it still implicates issues that are central to our republican form of government. For nearly a century, the Boy Scouts has been successful in its mission of instilling in young boys a sense of their moral obligations to God, country, and family, teaching certain virtues such as honesty, frugality, and reverence. The organization also stresses the importance of being "morally straight," which, for the Boy Scouts, includes the long-established view that extramarital sexual relations and homosexual conduct is immoral.
Our Founders viewed such moral training as essential in a republican form of government. The Declaration of Rights affixed to the beginning of the Virginia Constitution of 1776, for example, provides "[t]hat no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles." The Massachusetts Constitution of 1780 echoes the sentiment: "[T]he happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality."
Perhaps the clearest example of the Founders' views was penned by James Madison, writing as Publius in the 55th number of The Federalist Papers:
Republican government presupposes the existence of [virtue] in a higher degree than any other form. Were [people as depraved as some opponents of the Constitution say they are,] the inference would be that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.
The Founders viewed a virtuous citizenry as an essential pre-condition of republican self-government, and they encouraged the development of private associations that, like the Boy Scouts, were devoted to the development of moral character.
The New Jersey Supreme Court ordered the Boy Scouts to reinstate an openly gay adult as an Assistant Scoutmaster, undermining the organization's mission and forcing it to convey a message about the morality of homosexual conduct fundamentally at odds with the message it wishes to convey. New Jersey may be free to advance a different view of morality than that fostered by the Boy Scouts, but the Constitution forbids it from compelling the Boy Scouts to carry its message.
Justice Jackson wrote more than 50 years ago that
if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
Government-imposed orthodoxy, whether fostered by California's mandate that political parties allow cross-over voting or New Jersey's court order forcing the Boy Scouts to alter its views, infringes liberty and undermines the consent that gives legitimacy to government. The Supreme Court should not countenance either threat to republican liberty.