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Imagine being forced to join a political group whose public statements offend your beliefs, simply to do your job. For many lawyers across the nation, that’s their reality. And that’s the reality for lawyers in Oregon. Practicing law requires mandatory membership—and dues—to a state bar association that engages in political and ideological speech.

Daniel Z. Crowe and the Oregon Civil Liberties Attorneys are asking the U.S. Supreme Court to reconsider the constitutionality of mandatory bar association membership. Lawyers at the Goldwater Institute represent the petitioners. They argue that compelled association with a state bar that engages in political or ideological activity violates their First Amendment rights. At the heart of their petition is a growing split among federal appeals courts over whether lawyers can be required to join bar associations that voice opinions on matters unrelated to legal regulation or professional standards. In their petition, they ask the Court to revisit its holding in Keller v. State Bar of California.

In Keller, the Court announced that mandatory bar membership was permissible, so long as the bar’s speech was “germane” to regulating the profession. Keller relied heavily on Abood v. Detroit Board of Education, which allowed similar compulsion in union dues. But in 2018, the Court decisively overruled Abood in Janus v. AFSCME, holding that such compelled support is unconstitutional unless the person affirmatively consents. The petitioners argue that, after Janus, Keller should be reconsidered or overruled. And Keller is ripe to be revisited.

A split over mandatory bar membership is growing among federal courts. In the Oregon case being appealed by the petitioners, the Ninth Circuit held that the Oregon State Bar did engage in nongermane speech. Yet it found that the injury to members’ associational rights could be remedied by a simple disclaimer. By contrast, the Fifth Circuit, considering similar cases from Texas and Louisiana (McDonald v. Longley and Boudreaux v. Louisiana State Bar Association), held that compulsory membership in bar associations engaging in nongermane speech violates the First Amendment.

The petitioners contend that compelled membership in an organization engaged in political expression constitutes an associational injury regardless of public perception or disclaimers. They argue that the Ninth Circuit’s approach minimizes constitutional protections and results in a geographical inconsistency in the application of First Amendment rights.

If left unresolved, this split creates a troubling patchwork of constitutional protections. In some states, lawyers are shielded from compelled ideological affiliation; in others, they’re not. The petitioners urge the Court to resolve this disparity, reconsider Keller in light of Janus, and affirm that the First Amendment protects lawyers too.

If the Court grants review, the case could have wide-reaching implications for the structure of state bar associations and the extent to which professional licensure can be conditioned on financial and associational support of organizations engaged in political activity.

In a recently filed amicus brief supporting the petitioners, First Liberty Institute (my law firm) urged the Court to grant certiorari. First Liberty, a national nonprofit law firm dedicated to religious liberty, agrees with the petitioners that Keller has been fundamentally undermined by the Court’s 2018 ruling in Janus.

Beyond the legal foundation, First Liberty raised concerns about state bar association conduct since Keller was decided. The brief points out that bar associations have expanded their activities and advocacy far beyond their core regulatory functions. And it highlights that bar associations even use their core regulatory functions to promote ideological and political agendas. Examples include lobbying on divisive legislation, filing amicus briefs in high-profile litigation, and adopting or proposing speech codes—like those fashioned after the ABA’s Model Rule 8.4(g)—that critics argue chill protected speech, particularly religious viewpoints. First Liberty argues that compulsory bar membership requires lawyers to subsidize the activities of state bar associations that often work to directly undermine the interests of those lawyers and the clients they serve. 

The brief cites instances in which bar associations supported positions directly opposed to those of their members, such as filing briefs opposing religious liberty claims or implementing continuing legal education (CLE) panel quotas based on race and gender. It posits that these developments render Keller’s “germaneness” standard unworkable and increasingly weaponized.

First Liberty concludes by urging the Court to take up the case, stating that only the Supreme Court can resolve the mounting constitutional tension surrounding Keller.

At stake is more than just bar dues—it’s the principle that no American should be compelled to fund or associate with speech they disagree with, simply to earn a living. If the Supreme Court takes this case, it can finally end the constitutional inconsistency.