The American Civil Liberties Union very modestly describes itself as “our nation’s guardian of liberty.”
In light of the organization’s recent pronouncements, it might more accurately be described as the guardian of a far-left progressive agenda.
The ACLU is currently involved in two important issues. It has publicly opined that the Israel Anti-Boycott Act, a proposed federal statute that would prohibit a U.S. person from participating in an internationally organized boycott of Israel, violates First Amendment free speech rights.
{mosads}At the same time, it represents two gay men in a Supreme Court case where the ACLU is contending that the free exercise of religion guaranteed by the First Amendment is not violated if state law compels bakers, contrary to their religious convictions, to make a same-sex wedding cake.
The problem is that the ACLU is taking completely inconsistent positions on these two issues.
Start with the proposed Israel Anti-Boycott Act. The ACLU argues that it would violate the right to free speech, because it “would impose civil and criminal punishment on individuals solely because of their political beliefs about Israel and its policies.”
But it is false that the Act would punish people solely because of their political beliefs. Rather, it punishes people because their political beliefs motivate them to take a certain action—that is, to join in a boycott of Israel.
This crucial causal pattern—a particular belief motivating a specified action—is at the heart of all our federal civil rights statutes. For example, the federal Fair Housing Act prohibits discrimination based on race, religion, national origin or sex in the sale and rental of residential housing.
A landlord might refuse to rent a home to a prospective tenant for lots of reasons: they can’t agree on the rent, or the length of the lease, etc. None of those circumstances violates the Fair Housing Act. But, if the landlord refuses to rent the home because of the color of the tenant’s skin, that does violate the Act.
No one today would seriously argue—and the ACLU has never argued—that the Fair Housing Act violates a landlord’s free speech rights. A landlord, like anyone else in the U.S., is free to say anything, no matter how bigoted, about other races or religions. But it is nevertheless unlawful to refuse to rent an apartment because of discrimination against the prospective tenant.
The Israel Anti-Boycott Act, in this regard, is identical to the Fair Housing Act. Anyone is free to say anything at all about Israel, Zionism, or Israeli treatment of the Palestinians that he or she might wish to say. But there would be a prohibition against refusing to do business with an Israeli person because of some internationally organized boycott against Israel.
If the Israel Anti-Boycott Act would violate free speech rights, then the Fair Housing Act actually does violate those rights. If the Fair Housing Act does not violate free speech, then neither would the Israel Anti-Boycott Act.
Let’s now turn to what should be a sweeter topic: wedding cakes. ACLU lawyers are currently representing before the U.S. Supreme Court two gay men who asked a bakery in Denver to make a wedding cake. The owner of the bakery refused, based on his religious objections to same-sex marriage.
State courts held that the bakery had violated Colorado’s civil rights act, which prohibits discrimination based on sexual orientation. The bakery appealed to the Supreme Court; the case probably will be decided next year.
The first thing to note is that, if the proposed Israel Anti-Boycott Act violates First Amendment free speech rights, then so does the Colorado civil rights act.
There are a host of reasons why a baker might refuse to sell a cake to a particular couple: they are not willing to pay what he asks, they want him to use ingredients he is not willing to use, etc.
But the baker violates the civil rights act only if he refuses to sell the cake because the buyers are a gay couple. And the business person would violate the Israel Anti-Boycott Act only if he refuses to do business with an Israeli person because of an internationally organized boycott of Israel.
Once again, in every relevant respect, the two cases are identical.
If the Israel Anti-Boycott Act would violate the free speech rights of a person who refuses to do business with Israelis because he or she believes Israel mistreats Palestinians, then the Colorado civil rights act violates the free speech rights of a baker who refuses to sell wedding cakes to same-sex couples because he believes that same-sex marriages are sinful.
In fact, a fair-minded ACLU would have to concede that the baker’s constitutional case is much stronger than that of someone who boycotts Israel.
The person who boycotts Israel claims that his or her free speech rights under the First Amendment are being violated; the baker can make the identical claim.
But the baker can additionally claim that his right to the free exercise of religion, also guaranteed in the First Amendment, is also being violated.
Thus, the baker can fairly argue that two rights protected by the First Amendment — his right to free speech and to the free exercise of religion — are violated by state law. Someone who boycotts Israel contends (according to the ACLU) only that his right to free speech is violated. Clearly, the baker has the stronger case.
Note to ACLU: you can’t have your (wedding) cake and eat it, too.
David E. Weisberg is an attorney and a member of the New York State bar. His scholarly papers on constitutional law are published on the Social Science Research Network.
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