In Print: Volume 89: Number 6
By Robert K. Vischer
89 Wash. U. L. Rev. 1403 (2012)
As a political culture seemingly hard-wired for the full-throated championing of individual rights, we are not quite sure what to do with liberty claims by groups. Whether we are talking about corporate speech rights, the treatment of religious student groups at public universities, the limits of the ministerial exception, the Boy Scouts’ right to discriminate, or churches’ access to public schools, we have seen a recent spate of conflicts involving groups that have spawned both political battles and landmark Supreme Court rulings. As such, our uneasiness with the right of association as a constitutional matter may have something to do with our uneasiness with the freedom of association as a political matter. We do not quite know what to do with groups. Judging from the public reaction to the Court’s Citizens United ruling, we do know that Americans tend to reject the notion that the corporate person possesses rights on par with the natural person. And while citizens are more inclined to defend the autonomy of religious groups, it is not clear whether that inclination is just a relatively weak extension of our traditionally strong commitment to individual religious liberty, or whether there is meaningful recognition of the importance of group liberty. Especially outside the context of religious organizations, the deference owed to groups by the surrounding political community remains unsettled.
Today’s most contentious debates about legal protection for group autonomy have focused on the group’s freedom to defy the political community’s judgment as to what the common good entails, whether that judgment is expressed as broadly applicable nondiscrimination laws, limitations on the right to decline to provide certain morally contested goods or services, or conditions attached to government funding. When a group claims a right of moral autonomy, the claims encounter rougher political terrain than similar claims made by individuals. Because we cannot easily place the group’s asserted right of moral autonomy within the prevailing individual-versus-state paradigm for analyzing claims of conscience, we tend to view groups as interlopers masquerading as individuals. Groups do not have consciences; individuals do, and we struggle to understand a group claim for moral autonomy as anything other than an artificial claim of conscience. The pantheon of conscience’s heroes includes Thoreau, Gandhi, and King, not the Boy Scouts, Walgreen’s, or Catholic Charities. Invoking a right of group conscience has enjoyed limited traction in our political discourse. Indeed, we often believe that the best way to honor individuals’ consciences is by empowering them to overcome obstacles presented by groups.