Expressive Association at Work

Do employers have constitutional rights of expressive association? Two decades ago, in Boy Scouts of America v. Dale, the Supreme Court held that a state law prohibiting discrimination based on sexual orientation could not be applied to a membership organization that wished to exclude a gay leader. Today, courts face a rising tide of claims from employers, who argue that Dale constitutionally insulates their hiring and firing decisions from antidiscrimination law. A narrow majority of courts have denied these claims, asserting that Dale does not apply at work. Increasingly, however, courts side with employers, eliding any distinction between membership organizations and workplaces. Across the board, courts have failed to provide a coherent justification for their decisions.

This Article makes the case that membership and employment diverge along both expressive and associational dimensions. Employment comes apart from membership in its distribution of material resources, its reliance on coercive authority, and its integration of a diverse polity. We trace these distinctions through work law and uncover their presence within First Amendment doctrine, sometimes openly stated, often more subtly invoked. Put together, they support a presumption against extending the right of expressive association to the relationship between an employer and its employees.