Right/Freedom of Association/Conflicts with other Rights

Freedom of Association

History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations

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Freedom of expression and freedom of religion are two of the most critical liberties for upholding freedom of association. As noted by the International Commission of Jurists (ICJ), “freedom of expression is frequently a necessary component of the rights to freedom of assembly and association when people join together for an expressive purpose” (ICJ n.d.), indicating that the liberties are intertwined. The United States Supreme Court itself has also stated that it “has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment-speech, assembly, petition for the redress of grievances, and the exercise of religion” (Roberts v. United States Jaycees 1984, 618). In other words, true freedom of association is not possible without the freedom to speak or to practice a religion, both of which often involve congregation and organization among citizens.

Freedom of expression and freedom of religion are often discussed together in court cases, indicating that the two rights are enmeshed. For example, in 2009 the country of Honduras experienced a coup d’etat when then-President Zelaya was forced out of office by members of his own cabinet and other government organs. Many protested this act, including four judges who expressed their support for rule of law by attending demonstrations and conversing with others. These individuals were also a part of the Association of Judges for Democracy (AJD), and used the organization’s platform to speak out against the coup. Once it was found that the judges had and expressed political opinions in these ways, they were stripped of their positions, prevented from holding AJD membership, and convicted of violating the judicial code of ethics (Lopez Lone et al. v. Honduras 2015, 14-48). The plaintiffs, then, appealed the judgements to the Inter-American Court on Human Rights (IACHR), citing infringements on both freedom of expression and freedom of association. The Court eventually confirmed that the rights of the judges had been violated, explaining that their political participation was acceptable “in a context in which democracy is being impaired” (Lopez Lone et al. v. Honduras 2015, 57), while in other cases impartiality of officials is necessary. On the subject of the liberties that were violated and their importance, the Court stated that “it has recognized the relationship that exists between political rights, freedom of expression, the right of assembly and freedom of association, and that these rights, taken as a whole, make the democratic process possible. In situations where there is a breakdown of institutional order following a coup d’état, the relationship between these rights is even clearer, especially when they are all exercised at the same time in order to protest against actions by the public authorities that are contrary to the constitutional order” (Lopez Lone et al. v. Honduras 2015, 52). In addition, it claimed that “the ability to protest publicly and peacefully is one of the most accessible ways to exercise the right to freedom of expression, and can contribute to the protection of other rights” (Lopez Lone et al. v. Honduras 2015, 55). Through this case, the IACHR affirmed that freedom of expression is deeply intertwined with freedom of association.

The critical connection between freedom of expression and freedom of association is further made clear in the African Commission on Human and Peoples’ Rights (ACHPR) case of Williams v. Zimbabwe. Between 2003 and 2013, individuals representing the organization Women of Zimbabwe Arise (WOZA) participated in protests where they used verbal expressions, held placards, and more. As a result, members were arrested multiple times by the Zimbabwean police and charged with attempts to disturb the peace and similar crimes under the state’s criminal code. Even after the Supreme Court of Zimbabwe stepped in and defended the rights of the victims, police continued to perform arbitrary arrests and blocked members of WOZA from peacefully protesting. As a result, members of the organization filed a complaint to the ACHPR stating that the Zimbabwean government had denied them multiple rights, including freedom of association and freedom of expression, as defined by the African Charter (Williams v. Zimbabwe 2021, 1-3). When deciding this case, the Court states that they would analyze the alleged violations of both rights at the same time, because “the rights to freedom of expression, assembly, and association are intertwined to the extent that they are fundamental human rights that form the foundations of democratic societies”(Williams v. Zimbabwe 2021, 18). The Commission also stated that, in the past, they had “found a violation of freedom of expression when the State violated the rights to freedom of association and freedom of assembly” (Williams v. Zimbabwe 2021, 18). Eventually, the body was led to the conclusion that the restrictions placed on freedom of expression, and by default freedom of association, were not justified. As noted in the case report, “associations must be given the freedom to pursue a wide range of activities, including exercising their rights to freedom of expression and assembly” (Williams v. Zimbabwe 2021, 18), summarizing how both rights are critical to each other in the context of the case and in general.

Judiciaries have also often examined freedom of religion and freedom of association together, as can be seen in the European Court of Human Rights (ECHR) case Metropolitan Church of Bessarabia and Others v. Moldova. In 1992, the Metropolitan Church of Bessarabia was created. It applied to the Moldovan government for recognition as a religious denomination, as was required by Moldovan law. However, the application went unanswered by the government, and so for the next seven years the institution alternated between pursuing legal proceedings against the government and reapplying for recognition. In every case, the government ignored or refused the Church’s requests, stating that it was “not a denomination distinct from the Orthodox Church but a schismatic group within the Metropolitan Church of Moldova and that any interference by the State to resolve the conflict would be contrary to the Moldovan Constitution” (Metropolitan Church of Bessarabia and Others v. Moldova 2001, 10). On top of this, members of the Church of Bessarabia were continually harassed, intimidated, assaulted, and prevented from worshiping or conducting services by authorities. As a result, the institution and individual members applied to the ECHR to hear their case on the grounds that it was breaching the freedom of religion as defined by Article 9 of the European Convention on Human Rights. In their assessment, the court sided with the applicants, noting that “refusing to recognise the applicant Church…amounted to forbidding it to operate, both as a liturgical body and as an association” (Metropolitan Church of Bessarabia and Others v. Moldova 2001, 24), indicating that religious communities are akin to associations, which are also protected under the Convention. As a result, the Court ruled that the Moldovan government had violated the right to freedom of expression, and added that the regime’s “refusal to recognise, coupled with the authorities’ stubborn persistence in holding to the view that the applicants could practice their religion within the Metropolitan Church of Moldova, infringed their freedom of association, contrary to Article 11 of the Convention” (Metropolitan Church of Bessarabia and Others v. Moldova 2001, 35). The ruling, then, exemplifies how associations can be religious in nature, and religions can act as associations, meaning that the protection of religion is critical to upholding freedom of association, and vice versa.

References

International Commission of Jurists. “Chapter four: Freedom of Assembly, Association, and Expression.” Accessed July 5, 2023. https://www.icj.org/sogi-casebook-introduction/chapter-four-freedom-of-assembly-association-and-expression/

Lopez Lone et al. v. Honduras. Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 30 ¶ 14-18, 52, 55, 57 (Oct. 6, 2015). https://www.corteidh.or.cr/docs/casos/articulos/seriec_302_ing.pdf

Metropolitan Church of Bessarabia and Others v. Moldova, Application no. 45701/99, ECtHR of 2001. https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-59985%22]}

Roberts v. United States Jaycees, 468 U.S. 609 (1984). https://tile.loc.gov/storage-services/service/ll/usrep/usrep468/usrep468609/usrep468609.pdf

Williams v. Zimbabwe, African Comm. Hum. & Peoples’ Rights, Comm. No. 446/13 (February 25, 2021) https://rfkhr.imgix.net/asset/WOZA-Case-_-ACHPR-Full-Decision-compressed-2.pdf

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Differences in state and federal law contribute to varying levels of freedom of association across the United States. While Supreme Court cases such as Bates v. Little Rock, Shelton v. Tucker, Roberts vs. United States Jaycees, Boy Scouts of America vs. Dale, and Christian Legal Society vs. Martinez upheld the right to freedom of association, the right continues to be violated across states. Furthermore, despite its support from the Supreme Court, the system of federalism often leads to the restriction of freedom of association by local courts and authorities.

Particularly in South Florida, Lance Compa investigates how nursing home workers’ rights to free association have been violated. Furthermore, Compa explains how federalism exacerbates these violations. Noting the Palm Garden nursing home case, Copa discusses how nursing home workers were threatened with pay and benefit cuts if they decided to join unions. Additionally, Compa notes Palm Garden’s personnel manual, which states, “This is a non-union health center...if you are approached to join a union, we sincerely hope you will consider the individual freedoms you could give up, and the countless risks you could be taking.” After workers were in fact fired for joining unions, Compa notes, the NLRB asserted that Palm Garden must reinstate employees, as they had violated the workers’ right to free association. Still rejecting rehiring the employees, Compa explains that Palm Garden appealed to federal court, where the case still remains pending indefinitely. Furthermore, while the Supreme Court may uphold freedom of association, this does not mean the right can be strictly enforced throughout the United States, as appealing to federal courts demonstrates a significant challenge.

Additionally, Compa notes how freedom of association has been restricted for food processing workers. Specifically, Compa discusses the abuses faced by Smithfield workers in North Carolina, a state dominated by the food processing industry. Firing union activists and actively intimidating and discriminating against organizing workers, the Smithfield Plant violated its workers' freedom of association in numerous ways. Compa stresses that these abuses were ultimately the result of federalism, a system that contributes to the restriction of freedom of association. Compa states, “Instead of fulfilling the affirmative responsibility of government authorities to protect workers’ rights, state power was used to interfere with workers’ freedom of association in violation of international human rights norms.” Noting how local police were permitted to intimidate workers at the Smithfield Plant, Copa affirms how local authorities restrict freedom of association, countering federal law. This demonstrates how the division of state and federal power can weaken the strength of freedom of association, as local governments can discreetly work to limit the right.

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The Universal Declaration of Human Rights places freedom of association at a high position of value. The document asserts: “ Everyone has the right to freedom of peaceful assembly and association; No one may be compelled to belong to an association.” While the document does not enumerate human rights in hierarchical order, the platform of the United Nations and the inclusion of the freedom of association within the document suffices the right’s universally accepted importance and position of high status.

Additionally, the inclusion of freedom of association within the European Convention on Human Rights emphasizes the value of the right. Asserting the importance of freedom of association, Article 11 claims, “Everyone has the right to freedom of peaceful assembly and of association with others, including the right to form and join trade unions for the protection of his interests.” Stressing freedom of association to be an essential human right, the Convention echoes the Universal Declaration of Human Rights, upholding the value of freedom of association.

The Canadian Charter of Rights and Freedoms similarly elevates freedom of association to a high status. Within its fundamental freedoms section, the charter emphasizes “Everyone has the following fundamental freedoms: a. Freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; freedom of peaceful assembly; and freedom of association.” Explicitly stating that the freedom of association is one of the four fundamental freedoms, the Charter clearly asserts that freedom of association is essential to the liberty of individuals. Given the select group of fundamental freedoms, the placement of freedom of association within the list demonstrates its uplifted position within the greater hierarchy of human rights.

In the Declaration on Fundamental Principles and Rights at Work, the International Labour Organization additionally upholds the pertinence of freedom of association. Within the declaration, the ILO asserts four categories to be promoted by member states, including freedom of association. Similar to The Canadian Charter of Rights and Freedoms, by only including a select group of rights, the Declaration affirms the high status of these freedoms. Thus, the inclusion of freedom of association within the four categories asserts its importance

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Numerous scholars offer interpretations of the hierarchy of rights, placing freedom of association at differing levels of importance. Noted by Tom Farer in “The Hierarchy of Human Rights”, human rights are non-negotiable, and thus are prioritized within the hierarchy. As to why certain rights remain at the top of the hierarchy, Farer answers “because all other rights are dependent on them.” Furthermore, Farer claims that a consensus among United States human rights organizations is that the rights to life, physical security, and due process are essential human rights. Excluding freedom of association from his selection of non-negotiable human rights, Farer undermines its importance within the hierarchy of rights. Thus, Farer emphasizes that the rights to life, physical security, and due process hold precedence over the right to free association.

Fernando Surez Muller argues that there is a select group of fundamental rights that are essential to the exercise of all other rights. With this, Muller emphasizes that certain rights must be prioritized in order for others to be functionally implemented. When analyzing the Universal Declaration of Human Rights, Muller interprets freedom of association to be a right of particular importance. Muller argues that the rights to communication and expression are impossible to exercise without the right of free association, claiming, “Related to this transcendental right to communication (cell 6) are also all mobility rights (mentioned in articles 13 to 15) because communication is not only a matter of expression but it is also a matter of transporting and receiving the message and this requires freedom of association.” Thus, from Muller’s perspective, freedom of association maintains a high position within the hierarchy of human rights.

Explained by Kimberley Brownlee and David Jenkins of the Stanford Encyclopedia of Philosophy, the right to associate often only pertains to certain associations. Because of this, different rights to different associations have varying ranks within the hierarchy of rights. Brownlee and Jenkins claim “However, since not all associations operate according to either implicit or explicit declarations of consent, exactly what counts as consent is a difficult thing to assess: How do we know when association is free? This problem is exacerbated by the hierarchical form that many associations take.” For this reason, Brownlee and Jenkins note that explicit associations, group identifications that are easy to identify and thus protect, are often prioritized within the hierarchy of rights.

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The right to associate - specifically, the right for associations to exclude people from membership for whatever reason they want - may conflict with the right not to face discrimination based on immutable characteristics such as race and gender. The US Supreme Court has decided cases where an association’s decision to exclude members conflicts with non-discrimination law. In Roberts v. US Jaycees ( 1984) , the court rejected the free-association claim of a male-only business organization because its association was neither “expressive” nor “intimate.” In Boy Scouts v. Dale ( 2000) , however, the court held that the Boy Scouts of America could exclude gay members because not being able to do so would violate the organization’s right to expressive association. Free expression is critical to the practice of free association. The US Supreme Court explicitly protects “expressive” association because many associations exist to express a particular viewpoint. If a government restricts the advocacy of certain ideas, it will almost certainly restrict the activity of groups whose purpose is to express those ideas. Additionally, freedom of association depends on the free exercise of religion. As Locke wrote in A Letter Concerning Toleration, a church is a “a society of members voluntarily uniting” (Locke 1689, 9). Religious observance often requires worship in large groups, so restricting these religious practices entails the abridgement of free association. Roberts v. US Jaycees: https://supreme.justia.com/cases/federal/us/468/609 Boy Scouts of America v. Dale: https://www.oyez.org/cases/ 1999/ 99-699 A Letter Concerning Toleration: https://socialsciences.mcmaster.ca/~econ/ugcm/3ll3/locke/toleration.pdf