A Study on the Conflict Between the Anti-discrimination Laws and the Freedom of Expressive Association in the United States

다국어 초록 (Multilingual Abstract)

The First Amendment of the United States Constitution guarantees a person with the freedom of expression under which the person has a right to freely express his opinions and beliefs. One of the ways to express oneself is by joining as a member an association, the organizational purposes and mission of which he agrees and supports. An association and its members can claim under the freedom of expressive association that they have the constitutional right to decide the association’s membership composition in which they can deny membership privilege to individuals whom they wish to exclude as new members which is called the “negative right.” Such negative right can be claimed only if the association is an intimate or private association rather than a public accommodation or public association in nature, and the association has expressive purposes and messages.
On the other hand, the state governments have enacted the anti-discrimination laws to prohibit associations from discriminating against people on the basis of race, ethnicity, religion, or gender, etc. The government can claim that they have a compelling interest in eradicating associational discrimination by preventing them from refusing to give membership privilege on the basis of invidious classifications. The issue here is whether the government under its anti-discrimination laws can force an association to admit individuals that the association wishes to exclude by exercising its negative right under the freedom of expressive association.
When the anti-discrimination laws can adversely affect the fundamental right such as the freedom of expression and association, the laws must satisfy the strict scrutiny test in which the anti-discrimination law must be based on a compelling interest and must be narrowly tailored to achieve its compelling interest. In determining whether the governmental action at issue is unconstitutional in interfering with an association’s freedom of expressive association, the U.S. Supreme Court in a series of cases applied the balancing of interest test under which the Court evaluates the competing interests between the government’s compelling interest and association’s negative right. The determinations of whether a governmental law is narrowly tailored as well as whose interest is more important both depend on whether the government uses the least restrictive means in executing its anti-discrimination law. The determination of that question at the same time would require answering whether the execution of anti-discrimination law would have a detrimental effect on an association’s mission and purposes, interfering with the association’s freedom of expressive association.
This article proposes several methods which the courts can use in resolving the above issue. The most decisive factor to be considered seems to be whether an association’s membership composition is essential to a particular identity and purpose of the association. If an association can prove that the forced inclusion of certain individuals would alter the core identity and expressive purpose of the association in an irreversibly detrimental way, the protection of its constitutional freedom of expressive association must be given priority. Lastly, this article is to discuss and analyze the gender and racial discrimination in Korea in an attempt to draw the comparison between the American perspectives and the Korean perspectives on gender and racial issues.