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Most Americans know that the First Amendment protects freedom of speech and religion, but what about freedom of assembly? Where, exactly, did this freedom come from, and who does it protect? Could interpreting it differently change the outcomes of past, present and future court decisions? At an AEI and Federalist Society event, John Inazu of the Washington University Law School explored these questions that are central to his new book, "Liberty’s Refuge, The Forgotten Freedom of Assembly."
Inazu began the conversation with an overview of his objectives in writing "Liberty’s Refuge"— he aimed to offer diagnostic, historical and normative arguments by which to explore freedom of assembly and its relevance in American courts. Through this framework, Inazu examined the distinction between government toleration and government support of a practice as well as the role of assembly in emerging social movements (like the Tea Party Movement). Douglas Laycock of the University of Virginia School of Law praised Inazu's historic overview but criticized the book's normative arguments — shifting between freedom of association and assembly, Laycock argued, would have little substantive impact on major court decisions.
David Bernstein of the George Mason University School of Law touted Inazu's work for highlighting the historical origins and relevance of freedom of assembly. Like Laycock, Bernstein used the decision in Roberts vs. United States Jaycees — which dealt with organizational antidiscrimination law in Minnesota — to make his case, ultimately concluding that moving towards assembly would not change case outcomes. Inazu concluded the discussion by alleging that a shift in frameworks is indeed consequential, contrary to what Laycock and Bernstein suggested.
-- Elizabeth DeMeo
Ask Americans what they think the First Amendment protects, and they will tell you “freedom of speech.” Some will also mention “freedom of religion.” But few — if any — will think of the amendment’s third protection: “freedom of assembly.” In his provocative new book, “Liberty’s Refuge, The Forgotten Freedom of Assembly,” Washington University School of Law professor John Inazu implores Americans to keep in mind the importance of this protection.
Throughout the past decade, U.S. courts have struggled to reconcile anti-discrimination statutes with mission and membership requirements of private organizations. For example, can the Boy Scouts of America expel a homosexual scoutmaster (Boy Scouts of America v. Dale)? In reaching these decisions, the courts have frequently invoked the freedom of "expressive association," a phrase that does not appear in the text of the First Amendment but has been a part of judicial doctrine since the mid-20th century.
Is a more robust conception of associational autonomy desirable, and is it what the Constitution contemplates? What about the rights of individuals or groups excluded from participation as a result of private discrimination? What is the proper balance between social equality and organizational autonomy? Join the Federalist Society and the AEI as we explore these and other questions via a panel discussion of Inazu’s thoughtful new book.
Panel Discussion Begins
David Bernstein, George Mason University School of Law
John Inazu, Washington University Law School
Douglas Laycock, University of Virginia School of Law
Hon. Janice Rogers Brown, U.S. Court of Appeals, D.C. Circuit
For more information, please contact Elizabeth DeMeo at [email protected], 202.862.4876.
For media inquiries, please contact Véronique Rodman at [email protected], 202.862.4871.
David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law, where he has been teaching since 1995. He was a visiting professor at Georgetown University Law Center for the spring 2003 semester and a visiting professor at the University of Michigan School of Law for the 2005-2006 academic year. He is the author of over 60 scholarly articles, book chapters and think tank studies, as well as several books. Bernstein is the author of “You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws.”
Hon. Janice Rogers Brown was appointed to the United States Court of Appeals in June of 2005 after serving as a California state judge for more than 10 years. Before becoming a judge, Brown worked in both the legislative and executive branches, serving as a deputy in the Office of Legislative Council and the California Attorney General’s Office and as legal affairs secretary for Governor Pete Wilson.
John Inazu is a professor of law at Washington University in St. Louis, where he teaches criminal law, religion and law and law and philosophy. Inazu served for four years as an associate general counsel for the Department of the Air Force and clerked for Judge Roger Wollman of the U.S. Court of Appeals for the Eighth Circuit. He is the special editor for a forthcoming volume of “Law and Contemporary Problems” that focuses on theological argument in law.
Douglas Laycock is the Robert E. Scott Distinguished Professor of Law and Horace W. Goldsmith Research Professor of Law at the University of Virginia School of Law. Before joining Virginia's faculty in 2010, Laycock served on the law faculties of the University of Chicago School of Law, the School of Law at the University of Texas-Austin and at the University of Michigan Law School. Laycock has testified frequently before U.S. Congress and has argued many cases in the courts, including the U.S. Supreme Court. He is the author of the leading casebook “Modern American Remedies,” the award-winning monograph “The Death of the Irreparable Injury Rule” and many articles in the leading law reviews on religious liberty and other constitutional topics. Laycock is vice president of the American Law Institute, a fellow of the American Academy of Arts and Sciences and the 2009 winner of the National First Freedom Award from the Council on America's First Freedom.