First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.

While the previous sections have focused on expressive association, the Constitution also protects certain forms of “intimate association.” 1 These protections primarily extend from the personal liberty interests protected by the Due Process Clause of the Fourteenth Amendment,2 which the Court has construed to include an implied “right of personal privacy.” 3 The relationships “entitled to this sort of constitutional protection” are “those that attend the creation and sustenance of a family,” 4 including those formed through marriage,5 childbirth,6 child-rearing,7 and “cohabitation with one’s relatives.” 8 Those constitutional liberties are discussed more fully elsewhere in the Constitution Annotated.9

Infrequently, the Supreme Court has considered the degree to which the First Amendment may also protect association in family and intimate relationships. In Lyng v. International Union, the Court rejected a First Amendment challenge to a federal law that denied eligibility for food stamps while any member of a household was on strike.10 The Court reasoned that the law did not violate the freedom of association of close relatives because it did not “directly and substantially interfere with family living arrangements.” 11

Footnotes

1

Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984).

2

Although the Court has characterized the right of intimate association as having First Amendment dimensions, it has not recognized any intimate relationships that qualify for constitutional protection under the First Amendment, other than those identified in its due process decisions. See See id. at 619–20 (citing due process decisions).

3

Carey v. Population Servs. Int’l, 431 U.S. 678, 684 (1977); see also, e.g., Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (stating that “[w]ithout doubt,” the “liberty” protected by the Fourteenth Amendment “denotes not merely freedom from bodily restraint but also the right of the individual” to marry and to “establish a home and bring up children” ).

4

Roberts, 468 U.S. at 619.

5

See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (reasoning that for a state to deny the “fundamental freedom” to marry on “so unsupportable a basis” as race would “deprive all the State’s citizens of liberty without due process of law” ); Obergefell v. Hodges, 576 U.S. 644, 675 (2015) (holding that “same-sex couples may exercise the fundamental right to marry,” that is “inherent in the liberty of the person” ).

6

See Carey, 431 U.S. at 685 (stating that “the decision whether or not to beget or bear a child is at the very heart” of choices protected by the right of personal privacy implicit in the Fourteenth Amendment). See Amdt14.S1.6.3.6 Sexual Activity, Privacy, and Substantive Due Process.

7

See, e.g., Meyer, 262 U.S. at 399 (reversing a teacher’s conviction for teaching a student the German language, reasoning that the prohibition on teaching languages other than English in primary schools interfered with, among other things, “the power of parents to control the education of their own” ).

8

Roberts, 468 U.S. at 619. See, e.g., Moore v. E. Cleveland, 431 U.S. 494, 506 (1977) (holding that an ordinance that prohibited certain relatives outside of the “nuclear family” from living together violated the Fourteenth Amendment).

9

See Amdt14.S1.6.3.4 Family Autonomy and Substantive Due Process and Amdt14.S1.6.3.5 Marriage and Substantive Due Process.

10

485 U.S. 360, 362 (1988).

11

Id. at 365–66 (internal quotation marks omitted). The Court also held that the law did not violate the associational rights of the striking worker and the worker’s union. Id. at 366–68. See also Dep’t of Hous. v. Rucker, 535 U.S. 125, 130, 136 n.6 (2002) (stating that Lyng “forecloses” tenants’ freedom-of-association challenge against a statute authorizing local public housing authorities to “evict tenants for the drug-related activity of household members and guests whether or not the tenant knew, or should have known, about the activity” ).