Читать книгу The Tax Law of Charitable Giving - Bruce Hopkins R., Bruce R. Hopkins, David Middlebrook - Страница 18

Tax exemption for nonprofit membership organizations may be viewed as a manifestation of the constitutionally protected right of association accorded the members of these organizations. There are two types of freedom of association. One type—termed the freedom of intimate association—is the traditional type of protected association derived from the right of personal liberty. The other type—the freedom of expressive association—is a function of the right of free speech protected by the First Amendment to the U.S. Constitution.

By application of the doctrine of freedom of intimate association, the formation and preservation of certain types of highly personal relationships are afforded a substantial measure of sanctuary from unjustified interference by government.⁸⁰ These personal bonds are considered to foster diversity and advance personal liberty.⁸¹ In assessing the extent of constraints on the authority of government to interfere with this freedom, a court must make a determination of where the objective characteristics of the relationship, which is created when an individual enters into a particular association, are located on a spectrum from the most intimate to the most attenuated of personal relationships.⁸² Relevant factors include size, purpose, policies, selectivity, and congeniality.⁸³

The freedom to engage in group effort is guaranteed under the doctrine of freedom of expressive association⁸⁴ and is viewed as a way of advancing political, social, economic, educational, religious, and cultural ends.⁸⁵ Government, however, has the ability to infringe on this right when compelling state interests are served that are unrelated to the suppression of ideas and that cannot be achieved through means significantly less restrictive of associational freedoms.⁸⁶

These two associational freedoms have been the subject of a U.S. Supreme Court analysis concerning an organization's right to exclude women from its voting membership.⁸⁷ The Court found that the organization involved and its chapters were too large and unselective to find shelter under the doctrine of freedom of intimate association. Although the Court also conceded that the “[f]reedom of association therefore plainly presupposes a freedom not to associate,” it concluded that the governmental interest in eradicating gender-based discrimination was superior to the associational rights of the organization's male members.⁸⁸ In general, the Court held that to tolerate this form of discrimination would be to deny “society the benefits of wide participation in political, economic, and cultural life.”⁸⁹