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On the fragility of associational life: A constitutive liberal’s response to Patrick Lenta 125
in the decision-making processes that have a direct impact on their lives. 33
3 The over-valorisation of equality
One clearly-justifiable form of state interference with associations and
networks is the requirement that certain associations open themselves up
to a wider potential membership because they control access to important
(and otherwise unavailable) social goods. PEPUDA does just that. 34
But the Act goes further. The Act makes equality per se a trump. The
Act presents a particularly difficult question for Lenta and me: When, if
ever, does the freedom to associate or the right to religious practice secure
a legitimate right to discriminate?
The US Supreme Court employs a set of doctrines that rests upon
distinctions between 'expressive associations' and 'intimate associations',
on the one hand, and those associations which are neither expressive nor
intimate, on the other. Where an association is neither expressive nor
intimate, the right to dissociate and discriminate may fall before some
other important state interest.
These doctrines are articulated in a trio of cases: Roberts v United States
Jaycees; Board of Directors of Rotary International v Rotary Club of Duarte; and
New York State Club Association v City of New York. 35 In all three public
accommodation cases, constitutional associational interests fell before
egalitarian concerns reflected in state statutes. But they only tell one side
of the story. The other side is told in Boy Scouts of America v Dale. 36
In Dale, the Boy Scouts of America have had their desire to exclude
homosexuals vindicated by the US Supreme Court. A majority of the US
Supreme Court justices found a relatively clear nexus between the right of
the Boy Scouts of America to represent themselves as standing for a
particular set of values (whether they actually expressed them or not) and
the right to exclude individuals whose behaviour apparently subverts those
stated values. Although not employed by the Court, the following threepart
analysis suggested herein does some work in explaining what was at
stake in Boy Scouts of America v Dale.
The Boy Scouts of America (a very large and powerful bonding and
bridging network) offers a suitably complex setting to test some of my
interim conclusions about bonding, bridging and association analysis. The
33 Doctors for Life International v Speaker of the National Assembly 2006 6 SA 416 (CC);
Matatiele Municipality & Others v President of South Africa & Others 2007 6 SA 477 (CC).
34 n 5 above.
35 468 US 609, 615, 104 SCt 3244 (1984) (Roberts); 481 US 537, 107 SCt 1940 (1987)
(Rotary Club); 487 US 1, 108 SCt 2225 (1988) (City of New York).
36 530 US 640, 120 SCt 2446 (2000) (Dale).