Freedom of association, Freedom of religion
Civil Rights and Discrimination | Constitutional Law | First Amendment
When should a constitutional democracy allow private associations to discriminate? That question has become prominent once again, not only in the United States but abroad as well. John Inazu provides a provocative answer in his impressive Article, The Four Freedoms and the Future of Religious Liberty. According to his proposal, “strong pluralism,” associations should have a constitutional right to limit membership on any ground, including race. Strong pluralism articulates only three limits: It does not apply to the government, to commercial entities, or to monopolistic groups. In this Response, I raise four questions about Four Freedoms. First, I ask why exactly strong pluralism should be preferred to the existing settlement between associational interests and equality values. Second, I draw a parallel between strong pluralism and broader sorting theories, and ask about the choice of a level of generality or social organization on which to promote sorting. Third, I interrogate strong pluralism’s three limits, and finally I ask whether extending the theory beyond regulation to government funding can be defended on a liberty theory such as strong pluralism. I conclude by commending Four Freedoms to everyone interested in these pressing questions.
Tebbe, Nelson, "Associations and the Constitution: Four Questions About Four Freedoms," 92 North Carolina Law Review 917 (2014)
Civil Rights and Discrimination Commons, Constitutional Law Commons, First Amendment Commons
This article predates the author's affiliation with Cornell Law School.