Freedom of Association

Do Americans really cherish freedom of association? Are there any justifiable restrictions on freedom of association? In my book, any restriction on one's right to associate freely with anyone he pleases, on mutually agreeable, terms is both offensive and a gross violation of human rights. Let's think about it, starting with a couple of examples from the past.

In 1958, Mr. Loving, a white man and Mildred Jeter, a black woman, Virginia residents, traveled to Washington, D.C. to marry. Upon return to Virginia, they were charged with and found guilty of violation of Virginia's antimiscegenation laws. In 1967, the U.S. Supreme Court, in Loving v. Virginia, held that laws banning interracial marriages violated the equal protection and due process clauses of Fourteenth Amendment. The couple's conviction was reversed. Aside from Virginia's antimiscegenation laws having violated the Constitution it also violated the basic human right of freedom of association.

Let's now ask would Virginia's laws been more acceptable if instead of banning interracial marriages it mandated interracial marriages? I'd find such a law just as offensive and for the same reason: it would violate freedom of association.

There's another case we might look at. H.L. Mencken, writing in the Baltimore Evening Sun (11/9/48), brought to light that the City's Park Board had a regulation forbidding white and black citizens from playing tennis with each other in public parks. Today, most Americans, I suspect would find such a regulation an offensive attack on freedom of association. I imagine that most would find it just as offensive if the regulation had required blacks and whites to play tennis with one another. It would also violate freedom of association.

While Americans would agree there should be freedom of association in the specific cases of marriage and tennis, but what about freedom of association as a general principle? Suppose men formed a club, a professional association or any other private association, and women wanted to be members, is there any case for forcing them to admit women? Or, what if it were white men who formed a private association, is there any case for forcing them to admit blacks to membership? The same question can be asked in reverse: what if it were women or blacks who formed an association should they be forced to admit men or whites? Wouldn't forced membership in any of these cases violate freedom of association?

What if you wanted to deal with me but I didn't want to deal with you? You say, "I stuck with that one, Williams; what do you mean?" Suppose I'm looking to hire an employee. You show up for the job but I don't want to deal with you. My reasons might be that you're white, you're a Catholic, you're ugly, you're a woman or anything else about you that I find objectionable. Should I be forced to hire you? You say, "Williams, that's illegal employment discrimination." You're right but it still has to do with freedom of association and either you're for or against freedom of association as a general principle. You might argue that I should hire or deal with the first qualified person who comes along. In terms of freedom of association, that's nonsense. After all would you say I should marry the first qualified women who comes along or play tennis with the first qualified person, or should I be free to marry or play tennis with people I like?

The bottom line is that the true test of one's commitment to freedom of association doesn't come when he allows people to associate in ways he approves. The true test of that commitment comes when he allows people to be free to voluntarily associate in ways he deems despicable. Forced association is not freedom of association.

Walter E. Williams
August 26, 2002
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