by Carson Holloway
within Philosophy, Religion and the Public Square
March 26, 2015
The ACLU is trying to deprive other organizations of freedoms that it would insist upon for itself. Their work is not a defense of equality—it is an effort to impose a certain view of morality on the country by law.
If asked, most Americans would probably say that they want to protect civil rights and civil liberties. This speaks well for their intentions, since civil rights and civil liberties are, in proper measure, good things. It also points to a problem, because civil rights and civil liberties are not the same thing. They are distinct principles that exist in a certain tension with each other.
This tension goes to the root of America’s way of life: it is the tension between two fundamental American aspirations, equality and liberty. Civil liberties, as the term implies, have to do with freedom. Civil liberties protect the individual’s ability to live his life according to his own best judgment, to freely choose his path without undue government interference. The American Bill of Rights is a charter of such liberties, protecting, among other things, freedom of speech, free exercise of religion, and the freedom to bear arms if one so chooses.
The term “civil rights,” on the other hand, usually refers not to claims of individual freedom but to demands for equal treatment. This meaning comes to light most readily if we think of America’s Civil Rights Movement of the 1950s and 1960s. The leaders of that movement were not chiefly concerned with the deprivation of individual civil liberties. Rather, their complaint was that African Americans were subjected to unequal treatment in America, especially by the laws and customs of the American south. They were excluded from public facilities—such as state schools—to which whites were admitted, and were often refused service at businesses that whites could frequent without difficulty.
The limits of the human condition continually force us to make choices about how to balance competing goods, both of which are acknowledged to be good. It is good to read a book, to enjoy a meal with friends, and to play a game of basketball, but you can’t do them all at the same time. Any life spent trying to incorporate them all will have to place limits on the pursuit of each. Similarly, if we are to be intelligent and responsible citizens, we cannot simply affirm a commitment to both civil rights and civil liberties, but must think well about how to balance their claims so as to preserve both.
Are Civil Rights and Civil Liberties Necessarily in Tension?
Civil liberties and civil rights cannot be equally maximized at the same time, because the maximizing of either will come at the expense of the other. Some civil rights claims demand that governments treat all citizens equally regardless of certain characteristics, such as race. These claims do not impede the claims of civil liberties in any substantial way. If we eliminate segregation in public schools, for example, this equality of treatment does not infringe on anyone’s civil liberties. Those who disapprove of such desegregation are still free to criticize it. For that matter, racists who do not want to attend a desegregated school are still free to seek out other, non-public schools. In general, equal treatment by the government does nothing to impede anyone’s individual liberty.
This is not the case, however, with other kinds of civil rights claims. Such claims sometimes demand that we receive equal treatment not only from our governments, but also from our fellow citizens. This kind of civil rights claim was also made by the Civil Rights Movement of the 1950s and 1960s. Martin Luther King, Jr., protested not just against segregated public schools, but also against businesses—such as hotels and restaurants—that refused to serve black customers.
Such claims do involve a tension with the liberty of others. If such a claim succeeds, if it is therefore incorporated into a law that requires equal treatment from businesses or other nongovernmental institutions, then it necessarily limits the freedom of the owners to conduct their business according to their own judgments.
That does not mean that such civil rights claims are illegitimate. In some cases, the common good may require that our individual liberties be curtailed. My point is simply this: if we hope to engage in clear thinking about civil rights and civil liberties, we need to see that a certain version of the former imposes costs on the latter. The ends achieved by some kinds of civil rights laws cannot be achieved except at the expense of something that most would agree is ordinarily a good thing, too: namely, the freedom of private actors to conduct themselves according to their own principles.
The ACLU’s Imperialistic Vision of Civil Rights
This tension is growing, as some forces in American politics advocate a more and more robust regime of civil rights. Consider the agenda of the American Civil Liberties Union (ACLU).
This organization, despite its name and origins, is now committed to a version of civil rights that cannot help but erode traditional American civil liberties. The problem is illustrated by a letter to Congress that the ACLU signed this month. The letter objects to possible actions on the part of Congress to reverse two laws recently passed by the District of Columbia Council: the “Human Rights Amendment Act of 2014” and the “Reproductive Health Non-Discrimination Act of 2014.”
According to the ACLU, the first of these measures repeals a discriminatory, explicitly anti-gay exemption in D.C.’s Human Rights Act that allows educational institutions that are religiously affiliated or “closely associated with the tenets of a religious organization” to discriminate on the basis of sexual orientation, specifically against “any person or persons that are organized for, or engaged in, promoting, encouraging, or condoning any homosexual act, lifestyle, orientation, or belief.”
As this framing of the issue suggests, the ACLU disapproves of the exemption. It approves instead the original court decision to which the exemption was intended as a remedy—one that would require a religious university like the Catholic University of America to “offer gay and lesbian student groups the same equal access to school facilities and services as afforded to officially recognized groups.” The ACLU does not regard this policy as imposing on the liberty of a religious university to operate in accordance with its beliefs about human sexuality.
The second DC measure the ACLU wishes to preserve “protects employees in D.C. and their dependents from employment discrimination based on their personal reproductive health care decisions.” This law serves an important public purpose, the letter suggests, because there “are many stories from across the country about women who have been threatened or fired from their jobs for their reproductive health choices, including being pregnant and unmarried, using IVF to conceive, or using birth control.”
This at first seems strange: most of us have probably not heard of such cases. An examination of the letter’s footnotes, however, reveals that all the examples the ACLU cites are of religious organizations—in most cases Catholic schools—that fired employees who had acted in ways that violated the moral teachings to which the organizations are committed. The footnotes also reveal that the ACLU regards abortion as just another reproductive choice for which an employee should be protected from being fired by a religious employer.
By pressing such principles, the ACLU, an organization founded to defend freedom and that became famous defending the First Amendment, is actually sacrificing American freedoms, including First Amendment freedoms, to an imperialistic version of civil rights.
The Right to Bear Witness
The First Amendment famously protects freedom of speech. That freedom, the Supreme Court has long held, also implies a freedom of association: because individuals have a constitutional right to express their views, they also have a right to join together and form associations to express those views. This is precisely the freedom that the organizations at issue in the ACLU letter are exercising and the ACLU is working to erode.
An integral part of a religious organization’s mission is to bear witness to—to proclaim in word and deed—the religious and moral principles to which it is committed. It is therefore perfectly understandable that, say, a Catholic university would not want its facilities to be used by organizations that promote an understanding of sexuality contrary to Catholic teaching.
Nor can the ACLU plausibly claim that such a university’s freedom is sufficiently protected because it is not required to give official recognition to such organizations. The regulation the ACLU favors explicitly requires such a university to give such an organization the same access as it would have if it were officially recognized. What kind of freedom permits an institution to withhold its approval but then requires it to act as if it did approve? This regulation undermines the freedom of speech and association of religious organizations by making them assist in promoting ideas they do not hold.
The same principles are at stake in the question of employment. It is not invidious discrimination for an organization dedicated to the promotion of certain principles to require that their employees agree with, support, and live according to those principles. This is true of any organization, but it is especially clear in the case of a religious school, whose purpose is to transmit a body of belief to its students. That purpose cannot be achieved, or is at least seriously impeded, if the school is compelled to employ teachers who reject the morality to which the school is dedicated. Yet the ACLU has now dedicated itself to defending such government compulsion.
Stifling Morally Conservative Opinions
Indeed, the ACLU’s hostility to the free speech rights of conservative and religious organizations becomes quite clear if one more closely examines the issues it has raised in this letter to the House. The letter characterizes the exemptions for religious institutions in the old DC Human Rights code as “anti-gay” and as permitting discrimination “on the basis of sexual orientation.” Its own review of the facts, however, makes it clear that the exemption in fact only permitted such organizations to refuse their services not to gays, but to persons organized in defense of the homosexual lifestyle. For the ACLU, then, it is impermissibly “anti-gay” for a religious organization to express and act on its moral convictions if those convictions are critical of homosexual conduct.
The ACLU’s conduct in relation to such issues is especially problematic since the freedoms of these religious organizations are sheltered not only under the First Amendment principle of freedom of speech, but also free exercise of religion. In its zeal for non-discrimination, the ACLU is trampling on not just one but two of the nation’s fundamental constitutional freedoms.
The ACLU might defend itself on the grounds that a certain equality of treatment, not only from government but even from private associations, is now also a cherished American principle. Isn’t that what the aforementioned Civil Rights Movement was all about? But this defense falls flat, because the ACLU is not in fact defending any neutral principles in its letter. Instead, it is trying to privilege certain points of view in the law and shelter them from criticism. In other words, it is standing not for equality but inequality.
This becomes clear if we consider the following questions. Suppose the ACLU accidentally hired some lawyers who opposed the ACLU’s legal and constitutional agenda. Would it accept a law that prohibited it from terminating those lawyers, even if they litigated—on their own time—on behalf of causes the ACLU disapproved? Would it tolerate a law that required the ACLU to make its offices available for meetings of these dissident attorneys? Certainly not. The ACLU is trying to deprive other organizations of freedoms that it would insist upon for itself. Its work is not a defense of equality—it is an effort to impose a certain view of morality on the country by law.
The motto of the ACLU is, “Because Freedom Can’t Defend Itself.” The irony today is that freedom needs to be defended from the ACLU.
Carson Holloway is currently a visiting fellow in American political thought in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.
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