As native Manhattanites, my wife and I feel a certain loyalty to the New York press and continue to subscribe to the New York Times. We do this even though the Gray Lady often ignores the news that’s fit to print when that news goes against the approved narrative and when so many of the articles display what might be called the bias of wokeness. Creatures of habit, we also keep paying for the print edition, finding on our doorstep each morning a copy rolled up in a blue plastic bag.
Last month, the blue plastic bag contained, in addition to the paper, a #10 envelope with a faux postmark: “ACLU — New York, NY — 10004.” Inside was a letter from the Executive Director of the American Civil Liberties Union, Anthony D. Romero (“Pronouns: He, him, his”). Titled “For the readers of the New York Times” and addressed “Dear Friend,” the letter asks for “a generous gift of $35, $50 or more” and provides a special Times web address to be used for such contributions, as well as a postage-paid business reply envelope for those who prefer to donate more slowly.
I have no idea how many subscribers received this letter or what the endeavor cost the ACLU, though it couldn’t have been cheap. Not that money seems to be a great issue for the organization: Romero’s compensation in 2021 was almost $885,000. Still, I have no objection to the existence of the letter, just as I would have no objection to an expensive full-page ad in the paper itself. But its appearance provided a stark reminder of why I am not a card-carrying member of the ACLU, not having donated for many years to the 501(c)(4) or, for that matter, to its 501(c)(3) partner, the ACLU Foundation.
The ACLU has a tough job. Most nonprofits are devoted to a single issue, or a constellation of related issues: the National Right to Life Committee and Planned Parenthood, for example. By contrast, the ACLU is supposed to look after the full panoply of civil liberties. But three problems present themselves. First, freedoms change as judges decide what is and is not protected by the Constitution, and this can be confusing: different states have different regulations, and Supreme Court rulings affect the law of the land. Second, these freedoms sometimes appear to clash. And third, laws and civil liberties can plausibly come into conflict, and when this happens, it is the responsibility of the ACLU to defend civil liberties.
These problems tend to be messy, so disagreement is inevitable. But since the retirement of Ira Glasser as executive director in 2001, and especially in recent years, the ACLU has moved in two troublesome directions. For one thing, the organization sometimes seems to forget that the United States has a robust set of civil liberties enshrined in the Constitution, especially in the Bill of Rights and the Fourteenth Amendment. For another, it sometimes aggressively promotes as civil liberties would-be rights that are not found in the Constitution and that are, to put it mildly, highly controversial.
Take the First and Second Amendments. We are seeing more and more tension between the two, and the ACLU, besides no longer being a bastion of free speech, is also demonstrating the truth of Justice Samuel Alito’s statement in McDonald v. City of Chicago (2010) that the Second Amendment is often regarded as “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” To be frank, I am a First Amendment guy. I find much of the rhetoric surrounding the Second Amendment distasteful; at the same time, I do not profess to have a profound understanding of these 27 words and feel deeply conflicted about the 6–3 Supreme Court ruling last June in New York State Rifle & Pistol Association, Inc. v. Bruen. As a private citizen, I am free both to support protections for the First Amendment and to worry about the Second. The job of the ACLU, however, is to protect both. These days it often appears to protect neither.
Then there’s abortion. The most visible example of a new federal ruling that returned power to the states is Dobbs v. Jackson Women’s Health Organization, which the Supreme Court handed down last June. The ACLU submitted an amicus brief in support of the respondents, but the Court felt differently, deciding in another 6–3 vote that the Constitution does not confer a right to abortion and that its regulation is a matter for individual states. Since then, legislators and voters in many states have gotten to work, with predictably polarizing results: the abortion-friendly Guttmacher Institute offers a regularly updated interactive map of current abortion policies, from Idaho (one of the most restrictive states) to its neighbor Oregon (the single “most protective,” in Guttmacher rhetoric).
Because the ACLU considers the choice to have an abortion to be an unenumerated right—Romero’s letter notes that the organization has been “working for abortion access since before Roe v. Wade was decided” and, in the aftermath of Dobbs, is “taking legal action in state after state”—its attorneys are shooting for lots of Oregons. It is perfectly appropriate for defenders of abortion to rally in support of this view in individual states, but there is widespread acceptance for at least some restrictions on abortion and the ACLU’s approval for second-trimester and even so-called partial-birth abortions places it outside the mainstream. Since many consider an unborn child’s right to life to be the civil liberty, not the putative “liberty interest” of the mother to abort that child, the ACLU is giving the impression that the moral opinion of a significant percentage of the population doesn’t count. In other words, the ACLU is not representing the views of most Americans—and while that is of course not dispositive, it is worrying.
Back to Romero’s letter. Here’s the first paragraph:
As a reader of The New York Times, you’ve seen the headlines: extremists pushing a nationwide ban on abortion, attacks on our right to use birth control, marry who [sic] we love, and access gender-affirming healthcare. Ideologues are trying to limit free speech in public schools and libraries—attacking “critical race theory” and muzzling teachers who wish to instruct the next generation of citizens about our history of discrimination—even the progress we’ve made as a country.
This is a hodgepodge.
First up: birth control and marriage rights. Aside from abortifacients (now a significant aside, to be sure), the right to birth control has been guaranteed since Griswold v. Connecticut (1965). As for the right for any two adult humans to marry each other, regardless of race or (still not uncontroversially) sex, this has been guaranteed since Obergefell v. Hodges (2015), which built on such cases as Loving v. Virginia (1967). (I stress “two” and “adult humans”: we are certain to see more suits in the coming years about the legality of throuples and such non-standard unions as human–animal marriage.)
The ACLU has good reason to defend these civil liberties, not least because the Supreme Court has found them to be guaranteed by the Constitution. Still, Obergefell built on Loving, which built on Griswold, and Griswold is a notoriously poorly reasoned decision, one in which Justice William O. Douglas and six of his colleagues created the so-called right to privacy through the use of an extant legal metaphor that they turned into a jackhammer: “penumbras, formed by emanations” from various amendments, including the Fourteenth. By contrast, the First Amendment guarantees “the free exercise” of religion explicitly. Would the ACLU not, then, defend this liberty with equal or greater vigor? Think again: for the organization, birth control trumps religious freedom.
Thirty years ago, the ACLU was a vocal supporter of the Religious Freedom Restoration Act (RFRA), which Congress passed nearly unanimously in 1993 in order to restore the so-called Sherbert test for claims based on the Free Exercise Clause. To quote from an article that the ACLU’s deputy legal director Louise Melling published in 2016, “we believed it would provide important protections for people to practice their faith.” Now, however, the ACLU is wary of RFRA because, according to Melling, it is “being used as a vehicle for institutions and individuals to argue that their faith justifies myriad harms.” The language of harm explains why the ACLU does not defend the right of employers with religious objections to be exempted from covering contraception for its employees, as in the case of Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2020), where the organization submitted an amicus brief in support of the respondents. Fortunately, the Supreme Court decided 7–2 for the petitioners, with Justice Clarence Thomas’s majority opinion regularly invoking RFRA.
The ACLU’s objections don’t stop with RFRA. Multiple webpages stress the organization’s “free exercise work” (“especially relevant,” it is stated, “for underrepresented populations, such as students and prisoners,” the latter protected under the Religious Land Use and Institutionalized Persons Acts of 2000). And yet—to take one example—in a basic Free Exercise case from 2017, Trinity Lutheran Church of Columbia, Inc. v. Comer, the ACLU submitted an amicus brief in support of the respondents. In this instance, too, though, the Supreme Court decided 7–2 for the petitioners.
I could go on. To come back to marriage, consider the fulminations of ACLU celebrity attorney Chase Strangio, who made it onto Time’s list of the 100 most influential people of 2020. This past November, Strangio wrote on Instagram about his “inexplicable amount of rage witnessing the Senate likely overcome the filibuster to vote to codify marriage rights for same-sex couples” (i.e., the repeal of President Bill Clinton’s 1996 Defense of Marriage Act) since “civil marriage” is a “deeply flawed and fundamentally violent institution.” Yes, you read that right: an ACLU attorney feels rage when he thinks about marriage because marriage is fundamentally violent. In the words of Jerry A. Coyne, who describes himself as “a long-time friend of the ACLU,” Strangio is “a man full of hate, and an unbalanced man whose views and actions undercut the liberalism and historical stand of the ACLU.”
Those who pay attention to such things will remember Strangio from two Novembers earlier, when he expressed in strong terms the wish to ban Abigail Shrier’s outstanding and compassionate 2020 book Irreversible Damage: The Transgender Craze Seducing Our Daughters—and to some extent succeeded in doing so. As James Kirchick wrote in the wake of the Shrier fiasco, “Not to put too fine a point on it, but it’s [i.e., having Strangio work for the ACLU] like a carnivore joining the staff of People for the Ethical Treatment of Animals.” Indeed.
This brings me to free speech. A short paragraph cannot do justice to what Romero’s letter says about this subject—and to what it does not say. In brief, however, it will be obvious to any unbiased observer that attacks on free speech are coming from the left as well as the right. It is not a good look for the ACLU to criticize only restrictions that come from the right, as in the letter—and this while employing a prominent attorney on the far left who resembles Captain Beatty.
Finally, consider “gender-affirming health care.” It is hard to argue that hacking off people’s healthy body parts counts as either health or care—and, however loudly the progressive fringe may shout otherwise, it is outrageous to claim this as care when those affected are children. In any case, no constitutional right exists to such procedures, and it is deeply alarming that the ACLU is aggressively attacking states that are banning them for minors and that the organization repeatedly uses “irresponsible suicide rhetoric,” as Leor Sapir describes in these pages.
The phrasing in Romero’s letter is extraordinary: “the ACLU is pressing harder than ever for transgender justice, pushing back against vicious efforts to accuse loving parents of trans kids of child abuse for helping them pursue medically necessary health care.” So, again, the organization is giving the impression that the moral opinion of what is in this case an overwhelming percentage of the population doesn’t count.
Thousands of organizations are devoted to building support for changing one or another law. Some are on the left, others on the right. The existence of these organizations is a good thing: we need people who really care to make the best case for why things should be different. When a law violates a civil liberty, the ACLU should step in. Border cases will always exist, but the ACLU should strive for political neutrality and not carry on as an activist organization that pushes blindly for all manner of controversial would-be rights, a good number of which most people believe violate fundamental freedoms.
The reason the ACLU expects to profit from Romero’s “Dear Friend” letter to the readers of what is supposed to be America’s paper of record is presumably that so many of them have much the same contempt for civil liberties as students at top law schools. It took the Times an astonishing two weeks even to mention last month’s otherwise very widely reported fiasco at Stanford—and far longer still to write a proper article about it. But perhaps this does not seem so astonishing after all once you discover from her biography that Tirien Steinbach, the dean (now on leave) at the heart of the controversy, “served for two years as the Chief Program Officer at the ACLU of Northern California.”
The ACLU and the New York Times deserve each other. But the American people, I often think, deserve neither.
Photo by AAron Ontiveroz/The Denver Post via Getty Images