Document Type : Research Article


Professor of Law at Emory University


"Freedom of association" as a right is a misnomer. Really, the right is about the "freedom of disassociation" and the right of one group to exclude individuals from the circle of its community or association. Granting the right to form a group, without granting the right of that same group to exclude others from the group, is a worthless right. Indeed, the proper contours of associational rights have been a significant problem in all democracies, as has been well demonstrated by the recent United States Supreme Court five to four decision in Boy Scouts of American v Dale (530 U.S 640 2000) -- deciding when a group has the right to exclude others remains a deeply deeply dividing issue in society. What makes these rights so problematic is that (unlike other rights) they involve an act of exclusion or expulsion towards another. In that sense the exercise of this right more directly impinges on other people's rights than for example, religious freedom rights or free speech rights.
The first section of this paper will focus on the legal process Jewish law uses to form communities and to exclude people from its community. It will address the legal basis within Jewish law for the power to shun or excommunicate people and the goals of such a practice. It will then discuss the problems raised (internal to Jewish law) through the use of excommunication and shunning in a modern secular community where one's primary means of self-classification is not normally through religion.
This paper will then address modern American, British and Canadian law responses to various religions excluding people from their sub-communities. A complete review of the problems posed in tort law will be provided, as well as recommendations for modification of tort law doctrines to allow for greater religious freedom to reinforce religious community values.The conclusion to this article notes that associational rights allowing the formation of religious sub-communities is not only fundamental to the ways in which a religious community forms itself, but profoundly compatible with general moral and legal notions of minority rights, and represents the most equitable way a religious community can form itself in a modern society.


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