The Freedom to Associate Without Fear

Reflections on First Choice Women’s Resource Centers, Inc. v. Davenport

Every generation must decide whether liberty is an inherent right bestowed by our Creator or a privilege bestowed by government. As I've often noted, the American Founders answered that question with remarkable clarity. The Declaration of Independence proclaims that all persons “are endowed by their Creator with certain unalienable Rights” and that governments are instituted not to create those rights but “to secure these rights.” That profound truth lies at the heart of our constitutional order. Civil government is the guardian of liberty, not its author. Whenever government forgets that distinction, freedom is imperiled.

The Supreme Court’s unanimous decision in First Choice Women’s Resource Centers, Inc. v. Davenport reaffirms this first principle. The case concerned a subpoena issued to a faith-based pregnancy resource center. The Court addressed an important constitutional question. May the government burden citizens’ freedom to associate with religious ministries through intimidation, even before a court has compelled compliance with a government-issued subpoena? The Court correctly answered no.

First Choice Women’s Resource Centers is a Christian ministry that served women facing unplanned pregnancies for decades. Motivated by the Biblical conviction that every human being is created in the image of God and possesses inherent dignity from conception until natural death, the ministry offered counseling, medical services, material assistance, and practical support to mothers and their unborn children. Like countless religious ministries throughout American history, its charitable work was an expression of deeply held religious conviction.

Following the creation of New Jersey’s “Reproductive Rights Strike Force,” the state’s Attorney General issued an expansive subpoena seeking extensive organizational records, including information identifying many of First Choice’s donors. The ministry maintained that compelled disclosure would discourage citizens from supporting its work, thereby chilling the freedoms of speech, religion, and association protected by the First Amendment. Lower courts concluded that the ministry lacked standing because the State had not yet enforced the subpoena through a judicial order. The Supreme Court unanimously rejected that conclusion.

Writing for the Court, Justice Neil Gorsuch correctly recognized that constitutional injury often begins before government completes its coercive act. As he memorably observed,

“The value of a sword of Damocles is that it hangs—not that it drops.”

The threat of governmental compulsion may itself deter citizens from exercising constitutional rights. If individuals must wait until government fully inflicts the injury before seeking judicial relief, many constitutional protections become hollow promises rather than meaningful guarantees.

The Court’s reasoning reflects principles deeply rooted in our constitutional tradition. James Madison argued in his Memorial and Remonstrance Against Religious Assessments that religion “can be directed only by reason and conviction, not by force or violence.” Because the duty each person owes to the Creator precedes civil society itself, Madison concluded that religious liberty is an unalienable right beyond the ordinary reach of governmental authority. The State possesses no legitimate authority to manipulate conscience by coercion or intimidation. That understanding profoundly shaped the Religion Clauses of the First Amendment.

The same principle extends naturally to religious association. Churches, ministries, charities, and other voluntary associations are not creations of the State. They arise from the free exercise of conscience exercised within civil society. They represent what the Founders understood as a rich network of institutions standing between the individual and the State. Their independence serves both religion and republican self-government by limiting the concentration of political power.

For that reason, the Supreme Court has long recognized that compelled disclosure of private associations threatens constitutional liberty. In NAACP v. Alabama (1958), the Court unanimously held that Alabama could not compel the civil rights organization to disclose its membership lists because forced disclosure would expose supporters to intimidation and retaliation, thereby burdening the freedom of association protected by the First Amendment. The constitutional principle announced there transcends political movements or ideological commitments. Whether one supports the NAACP, a church, a pregnancy resource center, or another lawful organization, government generally may not compel disclosure in a manner that chills constitutionally protected association absent an extraordinarily compelling justification.

That principle protects every American. Constitutional liberties cannot depend upon whether those in power approve of the beliefs being expressed. Today’s unpopular ministry may be tomorrow’s widely respected institution. The First Amendment therefore protects all citizens equally, regardless of whether their convictions reflect prevailing cultural opinion.

From the perspective of natural law, this conclusion follows necessarily. Human beings are social by nature. They thrive not in isolation but within families, churches, charitable organizations, educational institutions, and countless voluntary associations through which they pursue truth, cultivate virtue, and serve their neighbors. Government did not create these institutions and therefore possesses only limited authority over them. Its proper role is to preserve the conditions in which they may freely carry out their distinctive missions.

The Court’s decision recognizes that constitutional rights deserve judicial protection before governmental intimidation succeeds in suppressing their exercise. That procedural safeguard is itself an essential component of substantive liberty.

The broader implications are significant. Churches, Christian schools, pregnancy resource centers, disaster relief ministries, adoption agencies, homeless shelters, and countless faith-based organizations depend upon citizens who freely associate in support of their missions. If government may discourage that support simply by demanding donor identities whenever officials disfavor a ministry’s beliefs, the freedom of association becomes little more than an empty promise.

Our constitutional order demands more. The Declaration reminds us that liberty is the Creator’s gift. Madison reminds us that conscience is beyond the ordinary reach of civil authority. NAACP v. Alabama reminds us that freedom of association is indispensable to the preservation of liberty. And First Choice Women’s Resource Centers v. Davenport reminds us that these enduring principles remain very much alive. In reaffirming them unanimously, the Supreme Court strengthened not only the rights of one Christian ministry, but an essential pillar of ordered liberty upon which every American depends.