How a Progressive Judge Helped Preserve American Pluralism

Before I talk about a new court ruling out of Eugene, Oregon, I want to talk about an indispensable freedom to the American experiment. It’s called the “right of expressive association,” and it refers to the right of Americans to “join with other people to promote a particular outlook.” As George Mason University law professor David Bernstein has written, the right of expressive association “is a necessary adjunct to the right of freedom of speech.” In other words, the right of free speech is fatally degraded unless we have the right to join with others to promote our shared views. 

Think of a political party. Or an advocacy organization. Or a church. Or a church school. The seminal case establishing the right of expressive association dates back to the civil rights era. In NAACP v. Alabama, the Supreme Court blocked enforcement of an Alabama law that required the NAACP to reveal to the state’s attorney general “the names and addresses of all its Alabama members and agents.”

Given that Alabama was making this demand in the 1950s, one can only begin to imagine the consequences of such a revelation. Members and allies of the NAACP faced threats to their lives, their families, and their businesses. Mandatory disclosure would invariably chill cooperation with the group. As the court noted, “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

And what of the importance of preserving freedom of association more generally? Here the court was crystal clear: “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” It was thus “beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” 

Here the law is reinforcing an old and important American tradition. In his 1835 book, Democracy in America, Alexis de Tocqueville described how “Americans of all ages, all conditions, all minds constantly unite”:

Not only do they have commercial and industrial associations in which all take part, but they also have a thousand other kinds: religious, moral, grave, futile, very general and very particular, immense and very small; Americans use associations to give fêtes, to found seminaries, to build inns, to raise churches, to distribute books, to send missionaries to the antipodes; in this manner they create hospitals, prisons, schools. Finally, if it is a question of bringing to light a truth or developing a sentiment with the support of a great example, they associate. Everywhere that, at the head of a new undertaking, you see the government in France and a great lord in England, count on it that you will perceive an association in the United States.

This is how pluralistic nations thrive. Citizens are not dependent on the government or an aristocracy to form and sustain the organizations that give their lives direction and purpose. Political associations help citizens influence the government. Cultural affinity groups sustain the arts and shape values. Religious organizations help preserve the values that provide eternal, transcendent meaning to peoples’ lives. 

If those organizations are ripped apart by government interference (or die from disuse or misuse), then our polity suffers. More people become profoundly lonely. I’ve said it before, and I’ll say it again: Robert Putnam’s 2001 book Bowling Alone is arguably the most important and prescient book of the last 25 years. Putnam accurately perceived the terrible cost, to both civic and physical health, in the decline of civic associations in American life. 

Thus, preserving and rebuilding American civic associations is one of the most urgent tasks in American political and cultural life. As a matter of law, it is vital to respect the autonomy and independence of America’s private associations. As a matter of culture, it is critical that members of those groups preserve the organizations’ health, integrity, and vitality. 

If either side fails in its obligation—if the government intrudes upon liberty or if associations fail to conduct themselves with integrity—then the system becomes unstable. Human beings are built for community, and if we’re denied that community (or if our communities become dysfunctional), then we’ll fail to thrive. It’s that simple. And it should be a central organizing principle of conservatism to conserve both the freedom and the health of our associations as a necessary precondition to human flourishing. 

And that brings me to the Eugene case. In 2021, a coalition of dozens of students brought a lawsuit against the Department of Education challenging the religious exemption in Title IX, the federal statute that prohibits sex discrimination in federally-funded education programs. Title IX contains a narrow exemption for “an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.”

The plaintiffs were concerned with the way in which Christian education institutions applied their religious traditions to sexual morality. Many Christian schools uphold and advance a traditional Christian sexual ethic, which limits sex to marriage and defines marriage as the union of a man and woman. The plaintiffs argued that the religious carve-out, which permits religious schools to maintain their faith-based policies and seek federal funding on an equal footing with secular schools, violated the Constitution. 

While the case wasn’t decided on freedom of association grounds, the freedom of association implications were immense. Given the vast amounts of federal funding at stake, if religious schools were forced to conform to secular sexual values, they’d immediately face a dire choice—compromise on critical teachings of their faiths or face a permanent second-class status in American law. 

The plaintiffs, for their part, argued that Title IX’s religious accommodation was actually a form of religious establishment. It granted religious schools a form of preferential treatment. Why, plaintiffs asked, should the government fund discrimination?

The moment the case was filed, it became fuel for the culture war fire. On the left, it highlighted the alleged intolerance of religious institutions and the ordeal that many LGBT students face on Christian campuses. How could the law not just permit, but protect such oppression?

On the right, the case highlighted the intolerance of the left. Attendance at Christian schools was voluntary. There was no state coercion sending kids into Christian environments. Why not leave the schools alone? Was this lawsuit not further evidence that the left has no desire to “live and let live” but instead wishes to crush all opposition to the sexual revolution?

There was another fear in play as well. Was the fix in? After all, the case was filed in Eugene, Oregon, and not one of the many other jurisdictions where Christian colleges are located. Were the plaintiffs forum shopping for the most favorable judge? Also, the suit was filed against the Biden administration’s Department of Education. Would they defend the case, or would they settle on favorable terms with their ideological allies? Indeed, the Council for Christian Colleges and Universities intervened in the case to try to guarantee a strong defense.

These fears were magnified when the case was assigned to a progressive judge, Ann Aiken, a Clinton appointee whose husband is the former chair of the Oregon Democratic Party. One of her previous claims to national fame was her 2016 refusal to dismiss a rather novel claim brought by “group of young people” who argued that they had a “substantive due process right to a stable climate.”

But a funny thing happened on the way to the fix. The Biden administration pledged to “vigorously” defend the religious exemption (angering some of its LGBT allies), and on Friday, the religious exemption won, at least for now. Judge Aiken issued a 40-page opinion that not only denied the plaintiffs’ request for an injunction against the religious exemption, it dismissed the case entirely. And she did so using language that clearly indicated she recognized the impact of generations of supermajority Supreme Court jurisprudence protecting religious liberty. 

The opinion quoted the Supreme Court again and again:

This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.

And:

A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose.

And:

It is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.

To recap, a coalition of students sued the Biden Department of Education, seeking to roll back religious liberty and place a high price on the autonomy of religious organizations, the Biden administration defended religious liberty, and a Clinton-appointed judge dismissed the case, relying in part on unanimous Supreme Court precedent decided by both Republican and Democratic-appointed justices. 

This is not exactly the culture war narrative you hear on cable news.

I don’t want to go too far. I know that there are general differences between Republicans and Democrats on matters of religious liberty, and I know that there are differences on the Supreme Court. But here is the bottom line—when it comes to preserving the indispensable right of freedom of expressive association, our American system is delivering. Our liberties are secure. In fact, they’re more secure than they’ve ever been.

But if the health of our system depends every bit as much (if not more) on the integrity of our private associations as it does their liberty, here’s a key question—has our nation’s Christian community been as diligent in securing the integrity of our institutions as we have been in protecting their liberty? 

We have to hold to both liberty and integrity at the same time, a stance that often puts one at odds with either edge of the American cultural divide. Defend liberty, and some will accuse you of hatred, or of endorsing all of the ways that any given person or group exercises their freedoms. This is how you get a left-wing media environment that often conflates the defense of religious liberty with support for racism or homophobia but doesn’t dedicate nearly enough space to understanding the necessity of expressive association in American civic life.

Defend integrity, and you’ll face claims that you’re “undermining” the institutions you claim to support or that you’re “distracting” from the allegedly more important fights against the hated ideological or religious foe. This is how you get a right-wing media environment that will reserve countless words for drag queens, but not nearly enough space to cover the moral collapse of many of the most powerful religious institutions in the land.

Indeed, a lack of integrity often provides the fuel for the fires of outrage against American churches and church schools.  

We are people who possess rights and responsibilities. If you doubt that your rights have never been more secure, consider the Biden administration and Judge Ann Aiken. A Democratic-appointed judge agreed with the arguments of a Democratic administration to protect the religious freedoms of some of the most conservative religious institutions in America. 

But every successful defense of our rights should also remind us of our responsibilities. Americans are bowling alone. Church attendance declines. If we want to preserve and repair America’s civic associations, then the law is necessary but not sufficient. In 2023, the legal system is doing its part, but are Christian institutions doing theirs? A healthy social compact depends on both.

One more thing …

Stay tuned for more information on the future of the Good Faith podcast, but for this week Curtis and I are back for one of my favorite podcasts yet. We try to define courage and then discuss how to cultivate courage in our lives. It’s a great episode. Come for the discussion of C.S. Lewis and Churchill and stay for the moment when Curtis reads aloud from Lord of the Rings. I hope you enjoy the episode, and please share your thoughts on courage in the comments below. 

One last thing …

I’m using my last few Sunday French Press editions to share my favorite songs from the past year. This one, “Nineveh”, by Brooke Ligertwood, is perfect for this week. It’s about how the Christian community calls for repentance in the world but also must search its own heart for the corruption it calls out elsewhere. 

“Holy Spirit, help me see . . . Where there is Nineveh in me.” Amen to that.