Freedom of association
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- Free Association redirects here. For the article on Associated states, see "Compact of Free Association".
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Freedom of association is a Constitutional (legal) concept based on the premise that it is the right of free adults to mutually choose their associates for whatever purpose they see fit. This concept has been included in several national constitutions, including the United States Constitution, the European Convention on Human Rights, and Canada's Charter of Rights.
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[edit] United States
While the United States Constitution's First Amendment identifies the rights to assemble and to petition the government, the text of the First Amendment itself does not make specific mention of a right to association. Nevertheless, the United States Supreme Court has held that the freedom of association is an essential part of the Freedom of Speech because, in many cases, people can only engage in effective speech when they join together with others. The Supreme Court has found the Constitution to protect the freedom of association in two cases:
- 1. Intimate Associations. A fundamental element of personal liberty is the right to choose to enter into and maintain certain intimate human relationships. These intimate human relationships are known as "intimate associations." The paradigmatic "intimate association" is the family.
- 2. Expressive Associations. Expressive associations are groups that engage in activities protected by the First Amendment—speech, assembly, petitioning government for a redress of grievances, and the free exercise of religion. Because the role of these relationships is central to safeguarding individual freedoms, they may receive protection from undue intrusion by the State. Thus, there is a constitutional freedom to associate as a means of preserving other individual liberties.
[edit] Limitation
However, the implicit First Amendment right of association is not a general right of association. For example, it is illegal in the United States to consider race in the making and enforcement of private contracts other than marriage or taking affirmative action. This limitation of freedom of association results from Section 1981 of Title 42 of the Civil Rights Act, as weighed against the First Amendment according to the court decision Runyon v. McCrary, 427 U.S. 160 (1976).
The holding of Runyon is that the defendant private schools were free to express and teach their views, such as white separatism, but could not discriminate on the basis of race in the provision of services to the general public. So if the plaintiff African-American children wished to attend such private schools, and were clearly qualified in all respects (but race) and were able to pay the fees, and were willing to attend despite the fact that the schools strongly disliked them, then the schools were required by Section 1981 to admit them. The general rule to be drawn from this is that the First Amendment protects the right to express, including expression of racial discrimination, but people may not practice such ideas even within private associations.
This doctrine rests on the interpretation of a private contract as a "badge" of slavery when either party considers race in choosing the other. The phrase "badges... of slavery" is from the Circuit Court decision 109 U.S. 3 (1883) [1] upholding the power of Congress to pass laws under the Thirteenth Amendment to the United States Constitution compensating for the legacy of slavery.
[edit] Libertarian
Freedom of association is a term popular in libertarian literature. It is used to describe the concept of absolute freedom to live in a community or be part of an organization whose values or culture are closely related to what one wants; or on a more basic level, to associate with any individual one chooses.
The right-libertarian (or "free market capitalist," "minarchist") concept of freedom of association is often rebuked from a moral/ethical context. Under laws in such a system, businessowners could refuse custom to anyone for whatever reason. Opponents argue that such practices are regressive and would lead to greater prejudice within society. Those right-libertarians sympathetic to freedom of association, such as Richard Epstein, in a case of refusing service, a case of the freedom of contract, respond that unjustified discrimination incurs a cost and therefore a competitive disadvantage.
[edit] Workers' Freedom of Association
To most of the world, the freedom of association is a right identified under international labor standards as the right of workers' to organize and collectively bargain. The freedom of association is recognized as a fundamental human right by a number of human rights documents, including the Universal Declaration of Human Rights and International Labor Organization Convention C87 and Convention C98 -- two of the eight fundamental, core international labor standards.
