Christopher Donovan: According to the Augusta Chronicle, entrepreneurs are planning an all-White pro basketball league. (“Basketball league for white Americans targets Augusta“) Assuming this is all on the up-and-up and not a joke, it would make a great test case for legal exclusivity. The Supreme Court held in Boy Scouts v. Dale that some forms of “expressive” association can exclude others, though they’ve also held that purely private all-male clubs are unconstitutional. Law schools also unsuccessfully argued that they have the right to exclude military recruiters, though there was a federal statute on point that made this a slam dunk for the military.
On the whole, of course, we are denied the right of racial exclusivity in employment, housing and most major areas. This is the truly new policy hegemony that none of our ancestors would have approved.
My argument is that freedom of association is a primary — if not the primary — human right, outstripping even freedom of speech in its importance to human fulfillment. Or the “right of privacy”, advanced by Brandeis and Warren. It’s so basic, perhaps, that it doesn’t have fully-fleshed arguments on its behalf. But that’s what it needs.