The American Civil Liberties Union has earned a sterling reputation for its principled and nonpartisan defense of fundamental individual rights. But the group is now tarnishing that proud legacy.
On Thursday the 4th Circuit heard arguments in Liberty Inc. v. Lew – a case that pits a basic constitutional right against a bureaucratically mandated privilege for certain select employees. The case challenges the contraception mandate in the Affordable Care Act. That mandate requires large employers who opt to provide insurance to include coverage of contraception. The mandate is not written into the statute, which stipulates only that insurance policies must include preventive services. The Department of Health and Human Services has decreed those services include contraception.
Liberty University argues that underwriting or even facilitating the distribution of contraception violates its religious beliefs. Rather than defend Liberty’s right to freedom of religion, however, the ACLU of Virginia has submitted an amicus brief arguing that the First Amendment should take a back seat behind a bureaucratic edict.
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To get there, the group has had to engage in intellectual contortions and gyrations that would win a gold medal at any gymnastics competition. Assuming it knows better than Liberty does what the school’s beliefs entail, it argues that the mandate does not unduly burden Liberty’s freedom of religion.
Worse, the ACLU contends Liberty is seeking to “impose its religious beliefs on its employees.” This is fatuous, since it implies that Liberty – like many other large employers – was doing precisely that prior to the mandate. But if that were the case, then why didn’t the ACLU rise up to file suit against such impositions in the years and decades they supposedly were taking place?
In truth, employees remain just as free to obtain contraceptives as they were before the mandate was promulgated. Moreover, they are no less constrained from obtaining contraception than are the many employees of small firms that are exempt from having to provide any insurance, or the many employees of those large firms that opt to provide no insurance at all, and pay a compensating tax instead.
In its brief, the ACLU claims to “have a strong commitment to defending the fundamental right to religious liberty.” Sadly, with this case it has seriously eroded any grounds on which to make such a claim. For perhaps the first time, the group is advocating not the expansion, but the truncation, of a basic constitutional right. That stain on its record may take many years to erase.