The American Civil Liberties Union is something of a wildcard. Marked by caprice, it can be occasionally thrilling, but it is more often frustrating, inconsistent, and ramshackle. On issues of speech, the organization can be an ally of limited government — it recently played a key role in the gutting of the McCain-Feingold campaign-finance-reform bill, siding with Citizens United against the Federal Election Commission and winning a signal victory for the First Amendment — but, more often than it joins the chorus for liberty, it remains dumb. If, to paraphrase an old saying, 90 percent of defending the Constitution is just showing up, then the ACLU is an incorrigible part-timer.
The ACLU’s stated mission is “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.” Given its record, however, one would be forgiven for concluding that its copy of our charter is incomplete. Unfortunately, the ACLU appears to base its actions on the text of a tattered and torn document, from which the Second and Tenth Amendments are missing entirely, the Fourth was re-written in 1973, and the words “more or less” are appended to each paragraph along with an explicit invitation to interpret the document as broadly as humanly possible.
Like the Supreme Court, the ACLU is as easily judged by its sins of omission as by the active positions it takes. Certain cases that one would assume to be within its sphere of interest are met with a deafening silence. The national ALCU ignored the internment of Japanese American citizens during the Second World War, was notably quiet during the McCarthy era, and made no mention whatsoever of D.C. v. Heller, the most important Second Amendment case that the Supreme Court took since the New Deal. And until Wednesday of last week, to its long Catalogue of Things Overlooked we could have added the HHS contraception mandate. But then the ACLU spoke up — for the government.
Responding to the controversy, the ACLU’s Alicia Gay criticized the “powerful lobbying arm of the Catholic Church” for creating much ado about nothing, and then, for good measure, chastised the Church’s bishops for their perceived failure to talk about “women’s health.” Gay flatly denied that the measure violated the First Amendment, contending that “the fundamental promise of religious liberty in this country doesn’t create a right to impose those views on others, including ignoring civil rights laws or denying critical health care.”
Well, let’s break this down, starting with the charge that the Church wishes to “impose . . . views on others.” Given how often the organization has dealt with the First Amendment, one might expect the text to be seared into the collective eyes of the ACLU’s rank and file, but in the absence of such fluency, a refresher: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
In the case of the HHS mandate — which way does the coercion run? Are Catholic institutions forcing the government or their employees to do something — anything — or is the government impressing them into its service, and violating their “religion” and “free exercise thereof” by that act? The answer is clear: As with so much of Obamacare, it is free American citizens, churches, and companies that are being bullied into a particular course of action when they were previously free to choose, and it is the federal government that is doing the imposing. For an organization with the words “Civil Liberties” at the heart of its title, this should be of great concern. Alas it does not seem to be so.
The Washington Examiner correctly characterized the ACLU’s position on the contraception mandate as being that “individuals who choose not to pay for employees’ contraceptives . . . are forcing their beliefs on their employees.” But it is downright impossible to “force” a “belief” on another adult by doing nothing. By such logic, all employers who do not offer pensions or travel expenses as part of their reimbursement packages are stealing from their employees. No doubt we will hear that health-care policy is another thing that the Obama administration has marked “too important” — or in the ACLU’s words, too “critical” — for the state to consider it subject to constitutional adherence.
The typical liberal response to arguments such as these is to bring up a straw man, and to point out that some Catholic institutions receive government funds through Medicare and Medicaid and therefore should be subject to restrictions and mandates. This is not just irrelevant to the case at hand, but it is also false. Dollars sent from Washington do not each carry a rider noting that their transmission deprives the recipient of all constitutional protection. If they did, retired people would be politically silenced by their Social Security checks. Nobody would take seriously a suggestion that because a performance of Verdi’s Don Carlo is funded by the NEA, the federal government has the right to censor the libretto or, perhaps a purer analogy in this case, to force the conductor to include the oft-cut first act. Why do hospitals and universities differ?
Put simply, the federal government was never afforded the right to interfere in this sphere in the first place, and no amount of insisting that two and two make five will change that fact. Arguing for religious toleration in his Notes on the State of Virginia, Thomas Jefferson wrote that “our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God.” (Much as this might vex those on the left, “God” and “State” are not interchangeable terms.) Jefferson’s words formed the intellectual basis for Virginia’s Statute for Religious Freedom and, in turn, for the first amendment of the very Constitution that the ACLU claims to protect.
Their constitutional propriety aside, the likely consequence of laws such as the contraception mandate is that religious institutions will get out of the game entirely. Whether you consider narrowing the field to be part of the president’s endgame or not will depend upon your view of the president. But whether by design or accident, it will be a terrible day for America if a one-size-fits-all approach drives out the diversity that is our unique strength. Alexis de Tocqueville noted in Democracy in America that the manifold voluntary associations he saw on his trip across the country were the characteristic institutions of American life. He was right. America is best when it enjoys a panoply of groups in each area of civil society. But this can only obtain if the federal government respects the various caveats that each of those organizations will inevitably put on their participation.
The middle two letters of ACLU stand for “Civil Liberties.” There is no more celebrated civil liberty in the United States than that of religious freedom. This is why it occupies pride of place in both the Bill of Rights and the public’s imagination. In 2009, when Obamacare was being rammed through Congress, a dismissive Nancy Pelosi responded to a journalist who asked about the Constitution with a question of her own: “Are you serious?” She might well have asked the country at large. It has become clear in the last two weeks that for the ACLU, the answer is a resounding “No.”
— Charles C. W. Cooke is an editorial associate at National Review.