Thursday, April 11, 2013

The ACLU's Versatile First Amendment

    The ACLU has long been the target of critics who claim that, with a few exceptions, the organization is far more concerned with liberalism than liberties, its name notwithstanding. Two recent posts on the ACLU website will bolster the arguments of the critics, of whom I count myself one.   On April 3, 2013, the ACLU weighed in on a case currently before the Supreme Court:
Yesterday, we filed a friend-of-the-court brief in the Supreme Court in a case called United States Agency for International Development v. Alliance for Open Society International, opposing the so-called "Anti-Prostitution Pledge." The Pledge is a requirement that public health organizations who wish government funding for their work combatting AIDS and other diseases make a formal statement "opposing prostitution." 
The Pledge puts organizations in a quandary: On one hand, they can take the government's money and say something they might not really believe, have no opinion about, or see as a complex social issue irreducible to anything as simpleminded as "opposing prostitution." On the other hand, they can take a principled stand against the Pledge, forfeiting a share of billions of dollars in government aid that they could otherwise put to good use curbing disease and relieving human suffering. 
As we argued to the Supreme Court, the Constitution forbids the government from engaging in such moral compulsion. The First Amendment is, at its core, a shield against government intrusions into belief. When the government attempts to compel adherence to its view on any issue, it invades our very minds.... 
... the Supreme Court has made it clear that – whatever else the government may do – it may not dictate personal thoughts or beliefs. Any attempt to do so does violence to human dignity and distorts public debate.

    A conservative, especially a religious one, might be inclined to Amen the characterization of the First Amendment as "a shield against government intrusions into belief." The ACLU, however, finds that shield to have limited application on the judicial battlefield.  Contrast the stirring defense of "personal thoughts or beliefs" with the position the ACLU takes on the "contraceptive mandate" that is part of the Affordable Care Act:
[T]he ACLU and the ACLU of Illinois filed a friend-of-the-court brief in two additional appeals challenging the Affordable Care Act's ("ACA") contraceptive coverage rule... 
The contraceptive rule, which requires health plans to include coverage for contraceptive care without a co-pay or deductible, ensures that millions of women will have access to affordable birth control, and represents one of the greatest advancements for women's health in decades. Ignoring this fact and the fact that the contraceptive rule is constitutional, the companies and their owners argue that providing health insurance coverage for contraception to their collective 1,168 employees imposes a "substantial burden" on their religious exercise. We strongly disagree... 
As we noted in the brief, the contraceptive rule does not compel or coerce employers to use or purchase contraception themselves. The rule simply requires employers to provide their employees with a comprehensive health plan.

    The ACLU has taken a constitutional stance that allows no conditions to be imposed on an organization receiving taxpayer money, yet permits the government to coerce an organization to spend its own money in violation of its beliefs.  The values and priorities of the ACLU have created this ludicrous pairing of positions that would be comical if the stakes were not so high.  The First Amendment "shield" is not strictly a defensive weapon for the ACLU, but, depending on the objective, can be used as a bludgeon as well.

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