Freedom of Association

From the Washington Post:

A federal appeals court yesterday prohibited the government from withholding funds from colleges and universities that refuse to cooperate with military recruiters because of the Pentagon's discrimination against gays in the armed forces.

I like this decision. As Ann Althouse explains, it was partly based on the Boy Scout case, where the Supreme Court found that the Scouts do have the right to discriminate against gays. So the appeals court found that if there is a right to discriminate against gays, there is also the right to discriminate against those who discriminate against gays.

This has become, if it wasn't already, a judicial movement against government diversity-mongering, and it's a good thing. I have nothing against diversity itself; some of my best friends are diverse. But government-mandated diversity is an entirely different matter.

I note that in both cases, the courts couched their decisions in freedom of speech language. But I think that they're both more properly freedom of association cases. The latter freedom is somewhat controversial because of it's impact on racial and gender discrimination laws. So the courts essentially say that by forcing a group to associate with some other group, the government is requiring them to "send a message" that the first group doesn't want to send. I think that is a strange way of legitimizing freedom of association, but on the other hand using one right to prop up another generally reinforces both, like members in a structure.

I'm reminded of how Roe v. Wade was used to end sodomy laws in Lawrence v. Texas, reinforcing the right to privacy.

The freedom to associate with only those you want to began to get a dirty name during the civil rights movement where it was cited as a defense for racial discrimination, and then gender discrimination. Now both forms of discrimination have mainly corrosive effects on society, to say nothing of the effects on the people discriminated against. But the same could be said of hateful speech and little was done to curtail that right. The thought I disgree with wha you say but will defend your right to say it was never widely applied to freedom of association.

I think that in twenty or fifty years, laws against racial and gender discrimination will be acknowledged as having been an extra-Constitutional means of fixing a very real social problem. A patch. Without such laws, any person or group could actively work towards their own ideas of proper diversity without the threat of reverse discrimination lawsuits. An institution could aim for and get any racial composition (whether mixed or not) they wanted, for instance, without being concerned about the government. And acting without concern for any government interference is what freedom is.

There is the question of whether American society is ready to do without this patch. There are arguments on both sides of course. I tend to think that there are sufficient social pressures against racism and sexism that all hell won't break loose were these laws to disappear tomorrow. But that's the social engineering side. The inalienable right to assemble with whomever you would seems less open to question.