The ACLU’s Hypocritical Defense of Laws That Violate Religious Liberty

One of the great ironies of our politics is that the American Civil Liberties Union is now actually hostile to traditional American civil liberties.

This is the conclusion one must draw from a letter the organization has sent to the House of Representatives, seeking to defend two District of Columbia laws that, under the guise of enforcing non-discrimination, undermine the First Amendment rights of private organizations.

Essentially, the ACLU seeks to defend regulations that require religious universities to provide their facilities for the use of student LGBT advocacy groups and that forbid religious organizations from firing employees whose personal conduct violates the morality to which the organizations are dedicated.

As I explain at greater length at Public Discourse, the ACLU’s zeal for “non-discrimination” here directly infringes on not just one but two fundamental constitutional freedoms—freedoms that the ACLU was originally founded to protect.

Under the First Amendment, Americans enjoy the freedom of speech. The Supreme Court has long held that this freedom includes as well a freedom of association. Since individuals have a right to free speech, they also have a right to band together and form organizations that exist to promote their views. This is precisely the constitutional freedom that is being exercised by organizations that are constituted to promote a particular moral and religious worldview, and that in pursuit of that aim must choose to employ and support only those who will assist them in this undertaking.

This principle should be precious to any freedom-loving American, regardless of partisanship or ideology.  Without it, no Americans of any point of view could reliably cooperate in order to promote their shared ideas. Discarding this principle would permit the government to frustrate their efforts by making them employ or otherwise cooperate with people bent on undermining rather than advancing the organization’s cause. Since individuals usually are not powerful enough to make themselves heard without joining in associations with others, freedom of association is necessary to any effective form of freedom of speech.

There is, however, an additional problem. The organizations whose liberties the ACLU seeks to curtail are religious organizations, which means that their freedom to operate is protected not only by the First Amendment’s protection for freedom of speech and freedom of association, but also by its explicit protection for the “free exercise” of “religion.”

It is impossible for individuals to freely exercise their religion without permitting them to join into associations for that purpose.  And such associations are rendered effectively useless if they must employ and otherwise work with people hostile to their purposes.

Again, these freedoms should be defended by all Americans. The ACLU is organized with a view to the defense of certain principles.  In its mission it has often been aided by liberal religious organizations.

Neither the ACLU nor its allies could carry on their political and legal activism if the law could require them to employ people opposed to their purposes. To the extent that the ACLU wants this freedom for itself, it should respect it in others as well.  This is the American way.

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