Americans often forget about their constitutional right to free assembly - The Dallas Morning News

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With civil society under stress and cancel culture looming over any unpopular activity, the Supreme Court’s pending decision in Americans for Prosperity Foundation vs. Bonta couldn’t be more crucial.

At issue is California’s requirement that every nonprofit organization, simply to operate within the state, must disclose its major donors to the California attorney general. Striking down that requirement would surely be welcome, because the advance collection of personal information to facilitate investigations into future potential wrongdoing violates our constitutional traditions. But recognizing the freedom of assembly as the basis for protecting donor privacy would have even broader influence against the forces threatening self-government.

My firm, the Becket Fund for Religious Liberty, filed a brief before the court explaining that the underlying controversy follows from the law long giving short shrift to how and why the Constitution protects the freedom of assembly. Multiple justices highlighted our brief at oral argument, and for good reasons.

The First Amendment to the Constitution famously guarantees our inherent rights to freely exercise religion, speak on matters of public concern, and petition the government. But the amendment’s forgotten freedom is equally important — the freedom “peaceably to assemble.” It protects the space between the individual and the state where much of life is lived.

Unlike the other freedoms, which can be both exercised individually or in groups, the freedom of assembly is inherently a freedom of community. It ensures that we are free to come together around beliefs, traditions, rituals, customs and ways of life that form us into people capable of governing ourselves no matter how popular or politically expressive those assemblies may be.

Despite this freedom being essential for the development of self-governing people, the Supreme Court has spent most of the past 150 years conflating it with the right to petition the government. As a result, the freedom morphed from one protecting assemblies for activities and ideas that form communities for social, religious and political reasons, into a freedom contingent mainly on how “expressive” an association is.

The results were legally unpredictable. The NAACP could shield its members from public disclosure, but a religious group on a college campus could be compelled to accept leaders who rejected the group’s beliefs. The Boy Scouts could select their own members, but a Jewish fraternity could not.

But the problems are not just ones of legal doctrine. As Becket’s brief explained, the freedom of assembly comes from the word “ekklesia,” which is also the source of the word “church.” In Greek the word literally means “to be called out of.”

A properly functioning freedom of assembly does exactly that. It ensures we are free to be called out of ourselves. Free to be shaped in the responsibilities that free citizens must exercise toward their neighbors, their traditions, their civic communities and, most of all, their God.

By contrast, if assemblies are only protected based on how politically “expressive” they are, then the Constitution sees no value in citizens being shaped in certain virtues and moral visions necessary for self-government. How we understand the freedom of assembly is therefore at the core of how we understand what it means to govern ourselves.

An expression-only interpretation of freedom of assembly indulges the cultural trend observed by Yuval Levin in A Time to Build. He said the institutions we need to form our characters lose our trust, because they are reduced to mere platforms for vain self-expression.

An assembly freedom that turns on expression provides no check against that danger. And it fuels cancel culture, where an isolated, passion-driven individual can simply deploy state power against any assembly that calls him to any way of life that he finds distasteful. Without a formative freedom of assembly, the space for civil society is simply not allowed to exist.

The Constitution’s protection of autonomy for religious assemblies is a useful guide here. If the court agrees, then constitutional protection would no longer be contingent upon how “expressive” the assembly is. Only truly compelling interests (like an imminent public safety concern) can abridge the freedom of assembly. Forcing every assembly to subject itself to potential harassment and intimidation by disclosing its major donors — simply as a function of existing — comes nowhere close to a compelling interest.

It’s fashionable to talk about constitutional disputes as pitting individual rights against government authority. But reviving the freedom of assembly in Americans for Prosperity vs. Bonta would remind us of an important lesson, and at a necessary time: A free society depends on individuals confidently participating in the space between the individual and the state, in the communities where life is truly and fully lived. May this freedom be restored, and may we make full use of it.

William J. Haun is counsel at the Becket Fund for Religious Liberty. He wrote this column for The Dallas Morning News.

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The Link Lonk


June 21, 2021 at 01:33PM
https://www.dallasnews.com/opinion/commentary/2021/06/21/americans-forget-about-their-constitutional-right-to-free-assembly/

Americans often forget about their constitutional right to free assembly - The Dallas Morning News

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