Freedom of Association and Antidiscrimination Law: An Imperfect Reconciliation

The topic of this essay is to identify the proper role of antidiscrimination laws in relation to the general principle of freedom of association, which is itself a subset of the basic principle of freedom of contract. Historically, the usual understanding was that the principle of freedom of association enjoyed pride of place in the social hierarchy, such that the antidiscrimination principle was employed only in select contexts, primarily as a counterweight to monopoly power in a broad class of public utility and common carrier settings. The basic position had strong underpinnings in the constitutional provisions that protected equally property rights, economic liberties, and freedom of speech. One unified vision protected all forms of productive human behavior.