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You Can't Say That! By: David E. Bernstein
FrontPageMagazine.com | Wednesday, October 22, 2003

Below, FrontPagemag.com is pleased to run an excerpt from David E. Bernstein's new book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws (Cato Institute, 2003).


The American Civil Liberties Union has a well-earned public image as a stalwart defender of civil liberties, even when the rights in question conflict with extremely popular and seemingly important legislation. Unfortunately, however, the ACLU, bowing to intellectual trends in left-liberal circles, is increasingly willing to support the enforcement of antidiscrimination laws at the expense of civil liberties. Perhaps the most egregious example of this backsliding is the ACLU's remarkable opposition to the 1999 Religious Liberty Protection Act.

The national ACLU's opposition to the RLPA is just one of many examples of the organization's elevating antidiscrimination principles above free exercise rights. In 1983, for example, the ACLU filed a Supreme Court amicus brief against Bob Jones University, arguing that it was appropriate for the school to be stripped of its tax exemption by the IRS because of the university's (purportedly) religion-based ban on interracial dating.  A few years later, the ACLU sided with the Ohio Civil Rights Commission and against free exercise of religion in the Dayton Christian Schools case. 

State ACLU chapters, which act independently of the national ACLU, have also actively supported antidiscrimination cases that are hostile to free exercise rights. The Vermont chapter of the ACLU sued Catholic publisher Regal Arts Press for refusing a project from the abortion rights group Catholics for Free Choice. The Southern California branch of the ACLU filed a brief on behalf of a plaintiff attempting to force the Christian Yellow Pages, a publication created by and for evangelicals, to accept ads from non-born again Christians.

In the Hoffius case, the ACLU of Michigan filed a brief supporting plaintiffs suing a landlord for refusing to rent to cohabiting unmarried couples for religious reasons.

Religious freedom is hardly the only civil libertarian concern the ACLU has downgraded in favor of antidiscrimination concerns. The national ACLU, for example, believes that plaintiffs should be able to win antidiscrimination lawsuits by showing "disparate impact" (demonstrating the discriminatory effects of the defendant's actions, even if there was no discriminatory intent). This places defendants in a very vulnerable position-even if they acted completely innocently, they can be found liable-but the ACLU seems unconcerned.  As Cornell University professor Jeremy Rabkin points out, the ACLU is ''obsessed with due process, except when it comes to civil rights litigation, where they want no due process for the other side.'' ''There's a certain kind of logic to it,'' Rabkin adds, ''They genuinely think you're in the path of social progress if you object. It's not a personal comment on you; it's that you can't make an omelet without breaking eggs.''

To take another example, despite the ACLU's commitment to academic freedom, the organization vigorously supported the Civil Rights Restoration Act of 1987, which was passed in part to force small private colleges like Grove City College to kowtow to heavy-handed government regulation of their admissions and employment policies. Once again, the ACLU was more concerned with paving the road of social progress than with any civil liberties it bulldozed on the way.

The ACLU has been particularly eager to subject the Boy Scouts of America's membership policies to government regulation. Various ACLU chapters have sued the Scouts to force the organization to accept gays and atheists as members and scoutmasters-an effort that was finally rejected by the Supreme Court in 2000. Had the ACLU won its battle against the Scouts, civil liberties would have suffered great damage. For example, the ACLU sued the Scouts on behalf of a gay scoutmaster applicant named Timothy Curran, even though Curran acknowledged that he planned to violate Scouts policy by using his position to promote respect for gays among his youthful charges.

By that logic, antidiscrimination laws that ban religious discrimination could require gay organizations to hire fundamentalist Christians who want to use their positions to proselytize against homosexuality. It's hard to imagine the ACLU showing equal enthusiasm for that case.

The ACLU argues-albeit not persuasively-that the Scouts is not truly a private organization, because it benefits from indirect government subsidies, such as the free use of public school facilities. By this logic, organizations ranging from the PTA to voluntary student Bible study groups are also not private. In any event, it is unlikely that the ACLU's position would change if the Scouts cut its ties to the public sector. An ACLU attorney representing a renegade scout differentiated between clearly ideological groups like the Ku Klux Klan, which the ACLU believes have the right to exist autonomously and spread their messages, and the Scouts, which the ACLU views as a non-ideological group focused on teaching certain skills. ''You're talking about four million kids tying knots,'' he told the Washington Post. ''It's not the same thing.'' Yet many parents enroll their children in the Scouts not because they learn to tie knots, but because the Scouts inculcates traditional moral values.  The use of the phrase ''he's no Boy Scout'' to describe a reprobate is an indication of how much the Scouts' identity is tied to its production of morally upright citizens.

The ACLU's commitment to using government power to thwart discrimination is even threatening the organization's commitment to ''pure speech''-expression untied to any act of discrimination against any individual.

Several years ago, John Powell, who was then legal director of the ACLU, argued that universities had an obligation to suppress speech that made African American students feel uncomfortable. He stated bluntly that his ''concern is less with the strength of the First Amendment than with the wave of racial harassment that has swept the country.'' Powell also told a reporter that the most important issues for the ACLU were abortion and civil rights.  Pro-free speech forces within the national ACLU, led by its president and strong free speech advocate Nadine Strossen, eventually gained the upper hand, and Powell moved on to a position as a professor at the University of Minnesota School of Law.

Although the ACLU has generally supported free speech rights over antidiscrimination laws, its record is far from perfect and increasingly reveals schisms within the organization. On the plus side, the Virginia ACLU defended a college fraternity's right to put on an ''ugly women'' skit; the Kansas City ACLU affiliate waged a long fight for the KKK's right to use a public access television channel, and the Illinois ACLU filed a brief on behalf of Matthew Hale, a law school graduate who was denied admission to the Illinois bar because of his racist beliefs. The ACLU also filed successful lawsuits against state university speech codes in Wisconsin and Michigan, and was active in defending neighborhood activists from the federal Department of Housing and Urban Development's charges that their political activities constituted illegal housing discrimination.

On the minus side, all three California ACLU affiliates have endorsed government-imposed university speech codes.

The ACLU's growing preference for social equality over individual freedom, although antithetical to its stated purpose, is not new.  The ACLU's support of civil liberties has been threatened by the temptation of egalitarian political goals since the organization's earliest years. Roger Baldwin, who founded the ACLU in 1920 and led the organization for decades, came out of the radical, pacifist, pro-labor, socialist left of the World War I years. Baldwin flirted with Stalinist communism throughout the late 1920s and most of the 1930s, and in 1934 wrote that he favored civil liberties only to ultimately aid workers in gaining power. ''If I aid the reactionaries to get free speech now and then,'' he wrote, ''if I go outside of the class struggle to fight against censorship, it is only because those liberties help to create a more hospitable atmosphere for working class liberties."

Early ACLU policies reflected Baldwin's socialist agenda. For example, despite its purported commitment to free speech, the organization supported the National Labor Relations Board when it penalized the Ford Motor Company for handing out anti-union literature. The ACLU's paradoxical position was that Ford could say what it wanted to in newspapers or in the chamber of commerce, but the government could restrict Ford's speech in its own factories.

Soviet communism lost its luster among many American leftists, including Baldwin, when Stalin formed a pact with Hitler in 1939.  The following year, the ACLU board of directors voted to expunge all communist influence from the organization. The board declared that it was ''inappropriate for any person to serve on the governing committees of the Union or its staff, who is a member of any political organization which supports totalitarian dictatorship in any country, or who by his public declarations indicates his support of such a principle." For the next 30 years or so, before its drift toward becoming an adjunct of the civil rights movement, the ACLU was a staunch and consistent defender of the First Amendment.  The growth of an aggressive antidiscrimination agenda at the ACLU at the expense of traditional civil liberties concerns has been a long, gradual process.

Cracks in the ACLU's defense of civil liberties began to appear in the late 1960s, when the ACLU-which was founded in large part to defend the rights of labor unions-supported African American community activists asserting ''local control'' of Brooklyn public schools against claims by the teachers' union that its members were being denied due process.  In 1972, the ACLU endorsed ''antiblockbusting statutes which prohibit false or deceptive statements concerning changes in the racial, religious, or national character of a neighborhood, and/or the effect of those changes, made with the intent for commercial gain, to promote the sale of property.'' This policy was sufficiently vague that it arguably did not conflict with First Amendment norms. But three years later, the board of directors voted down an amendment opposing fair housing laws to the extent the laws violated ''the constitutional guarantee of free speech.''

Also in 1972, the ACLU reversed its long-standing opposition to government-mandated racial quotas in employment and university admissions. Many ACLU board members seemed more concerned with how the ACLU would be perceived among liberals than with whether racial quotas, particularly when mandated by the government, were actually consistent with civil liberties. One board member, for example, argued that liberals think that ''to be against quotas is to be against the aspirations of blacks and other minorities to achieve equality in employment,'' and the ACLU could not afford to be perceived by liberals as being hostile to minorities. Over time, the ACLU's commitment to civil liberties has progressively weakened.

To maintain its large membership base, the ACLU recruits new members by directing mass mailings to mailing lists rented from a broad range of liberal groups. The result of the shift of the ACLU
to a mass membership organization is that it is gradually transforming itself from a civil libertarian organization into a liberal organization with an interest in civil liberties.

This problem has been exacerbated by the growth within the ACLU of autonomous, liberal, special interest cliques known as ''projects.'' These projects have included an AIDS Project, a Capital Punishment Project, a Children's Rights Project, an Immigrants' Rights Project, a Lesbian and Gay Project, a National Prison Project, a Women's Rights Project, a Civil Liberties in the Workplace Project, a Privacy and Technology Project, and an Arts Censorship Project. These projects tend to distract the ACLU from its traditional civil libertarian agenda-freedom of expression, free exercise of religion, freedom of assembly and association, and freedom from discriminatory government policies. This loss of focus has led Harvard Law School professor Alan Dershowitz to waggishly suggest that ''perhaps the Civil Liberties Union needs a civil liberties project."

Perhaps the ACLU's current drift away from defending civil liberties in favor of antidiscrimination and other concerns could be arrested if the ACLU adhered to a formal constitution-an immutable statement of civil libertarian principles to which the organization could refer any time its mandate became cloudy. Instead, the ACLU makes its policy democratically, by majority vote of the 83 members of the board of directors, which includes all chairs of state affiliates.  Immediate political considerations inevitably weigh against timeless principles, and, as Dershowitz notes, political expediency wins out far too often.

Current ACLU president Nadine Strossen is by all accounts a strong, consistent civil libertarian-she even wrote a book defending the legality of pornography from its feminist critics. But Strossen cannot single-handedly reinvent the organization as one devoted solely to civil liberties, given the strong foothold other constituencies have achieved within the ACLU. Strossen concedes that when antidiscrimination laws and civil liberties conflict, the ACLU uses an ad hoc balancing test, choosing ''between them in the context of particular facts, weighing the potency and applicability in each instance of the general values of liberty and equality."  As the left has generally turned its back on civil liberties in favor of antidiscrimination concerns, the ACLU has become increasingly reluctant to defend civil liberties at the expense of antidiscrimination laws.

David E. Bernstein is a professor of law at George Mason University.

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