On July 2, 2021, the Fifth Circuit Court of Appeals issued an opinion related to mandatory membership in the State Bar of Texas. The case is McDonald v. Longley, No. 20-50448.
The Fifth Circuit identified the first issue as follows: “[t]o determine whether compelling the plaintiffs to join a bar that engages in non-germane activities violates their freedom of association, we must decide (1) whether compelling the plaintiffs to join burdens their rights and, (2) if so, whether it is nevertheless justified by a sufficient state interest.” Regarding the first question, the Court concluded that, “If a member disagrees with [a] ‘conception of the good life or controversial ideology,’ then compelling his or her membership infringes on the freedom of association.” As to the second question, the Court stated that “Compelled membership in a bar association that engages in non-germane activities . . . fails exacting scrutiny.”
The second issue addressed by the Court was whether the State Bar of Texas engaged in “non-germane activities.” “For activities to be germane, they must be ‘necessarily or reasonably incurred for’” the purposes of “regulating the legal profession” or “improving the quality of legal services.”
The Court held: “[t]he Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights. There are multiple other constitutional options: The Bar can cease engaging in non-germane activities; Texas can directly regulate the legal profession and create a voluntary bar association, like New York’s; or Texas can adopt a hybrid system, like California’s. But it may not continue mandating membership in the Bar as currently structured or engaging in its current activities.”
In addition, the Court remanded to the trial court “to determine the full scope of relief to which plaintiffs are entitled” and issued “a preliminary injunction preventing the Bar from requiring the plaintiffs to join or pay dues pending completion of the remedies phase.”