Before the Supreme Court adjourns this term, it will decide a case that goes to the heart of religious freedom and civil libertarian activism: the constitutionality of Congressional legislation designed to allow religious organizations the right to receive federal funds for the promotion of self-discipline as a form of birth control for teenagers. Last spring, Washington, D.C. judge Charles Richey sustained complaints made by the American Civil Liberties Union (ACLU) that the law amounted to a federal subsidy for religious indoctrination. It is believed to be the first time in the nation’s history that any court has invalidated an act of Congress as an impermissible establishment of religion.
The legislation, known as the Adolescent Family Life Act (AFLA) of 1981, was introduced by former Senator Jeremiah Denton as an alternative method to the Planned Parenthood policy of providing teen-agers with counseling on contraception and abortion. The problem, as everyone agrees, is huge: by age 19 three-quarters of all boys and almost two-thirds of all girls have had heterosexual intercourse, resulting in higher rates of illegitimacy than at any time in the nation’s history and among the highest rates of any country in the world. Notwithstanding these alarming statistics, the ACLU, along with the American Jewish Congress and three Methodist ministers, has gone to court to stop Catholic participation in this government effort at curbing illegitimacy.
Central to the legislation is the belief that “prevention of adolescent sexual activity and adolescent pregnancy depends primarily upon developing strong family values and close family ties.” That is why the AF LA seeks to promote sexual restraint among teenagers in the context of parental involvement in sex education. Other aspects of the program include pregnancy testing and maternity counseling, adoption counseling and referral services, prenatal and postnatal care, nutrition information, referral for screening and treatment of venereal disease, referral to appropriate pediatric care, and mental health services. The target population, as the act stipulates, is the poor. It seeks to offer to low-income persons the same kinds of services that the affluent already have.
Given the magnitude of the problem, it seems reasonable that the government try multiple remedies. Nearly $150 million is spent each year on the Title X contraception program. Some might complain that spending a mere $14 million on sexual restraint counseling isn’t enough. None of this seems to matter to the ACLU, however, which has made up its mind that the AF LA is nothing more than an attempt to offer a privileged position to the Catholic Church. To the ACLU, the legislation discriminates in favor of Catholicism because, by granting money only to programs that don’t promote abortion, it excludes religions that favor abortion.
Now to the non-ACLU lawyer, this is simply absurd. The Adolescent Family Life legislation is not a religious program; it’s a program for abstinence. Abstinence is presumably not a Catholic prerogative; Jews, Hindus, and others have been known to be in favor of abstinence, and even to abstain. Further, while it is true that the Catholic Church opposes abortion and so does the AFLA legislation, it does not follow that the legislation is “Catholic” in nature. The Catholic Church also accepts elementary algebra; schools which teach algebra are not, on that account, proselytizing in the classroom. The point is that sexual restraint and anti-abortion are not exclusively Catholic beliefs. The ACLU’s attempt to apply a Catholic stigma to them, and thus brand them unconstitutional, suggests that the organization may not be particularly hospitable to the Catholic faith. As this article will show, the ACLU opposes religious orthodoxy generally, but is particularly hostile to Catholicism.
The ACLU admits to no bias whatsoever. The official position of the national organization is one of non-partisanship and neutrality with respect to religion. If some of its policies and legal briefs appear anti-religious, the ACLU says, that is because some people mistakenly think that the defense of a general principle necessarily implies moral sanction as to its particular exercise. But if that were true, then anyone who defended free speech could be said to approve of treason, since some speech is treasonous. Of course such charges are silly, false, and possibly malicious.
The ACLU contends further that its only interest is in seeing to it that the Constitution is faithfully executed. With respect to the First Amendment, this means that the wall between church and state should be strictly observed. Government and religion don’t mix and should properly be cordoned off from each other. Any relationship between church and state, however indirect, is unwarranted and unconstitutional. Fidelity to principle, and not intolerance of organized religion, is the ACLU rejoinder to charges of religious bigotry.
Yet a close look at what the ACLU has done in the area of religion belies this rhetoric. The Union’s policies and suits exhibit a marked insensitivity to Catholics that cannot be explained by a lofty commitment to the Bill of Rights. Quite simply, the ACLU’s commitment to the Constitution leads it to offend the interests of Catholics in a way it would never offend the interests of blacks, women, and gays. Indeed, if Catholics were afforded the same level of compassion that the ACLU regularly extends to other minorities, including religious minorities such as the Amish, it could not continue to pursue policies that are so offensive to, and subversive of, Catholic tradition.
Of course, Catholics are not the only religious group that has to live with civil libertarian insensitivity. Lutherans in Pittsburgh, for example, watched in vain for ACLU assistance when a group of unemployed steel workers and outside activists used threats and violence to try to shut down local churches as a means of protesting alleged “unconcern” on the part of the congregation. Jews in Miami Beach looked on in amazement as the ACLU pondered the threat to freedom that was posed by having a kosher inspector on the public payroll. And even music-loving non-believers in the state of Washington were surprised to learn that, according to the ACLU, a Bethel High School production of the rock opera Jesus Christ Superstar was a violation of the Constitution.
The ACLU’s present policies on religion have left a rich pedigree. When the Union was founded in 1920, it listed ten objectives. Among them were the First Amendment guarantees of freedom of speech, press, and assembly. Noticeably absent was any mention of freedom of religion. This was no oversight: the nascent ACLU was conspicuously more interested in social reform than in the defense of civil liberties. As the ACLU saw it, procedural rights were valuable only insofar as they served political objectives. Since religious freedom has nothing to do with the cause of the liberal-left, the ACLU seldom felt obliged to defend it. It did come to the rescue of Jehovah’s Witnesses and Quakers, but mainly because these groups gave the Union an opportunity to oppose conscription.
Even though the ACLU missed one opportunity after another to defend religious freedom in its early years, it did not actively work against the interests of religious minorities. That chapter in its history would come later, beginning in earnest in the 1950s. Before that, the ACLU’s strict separationist logic was confined to a few cases of national importance, such as the Scopes Monkey Trial. But since the 1950s, the Union has seized on every issue that has had even a taint of religious significance, especially Catholic significance, and has managed to uncover constitutional problems in areas that the most determined atheists have been prepared to overlook. Just as some zealots see a communist under every bed, some civil libertarians see a pope under every pillow.
There is a pattern that emerges from ACLU policy on church and state, and it is a pattern of intolerance for public expressions of Christianity, especially Catholicism. It has sought to declare as unconstitutional:
- the tax exempt status of churches and synagogues;
- the right of Congress to maintain its chaplains; the right of prisons and the armed services to employ chaplains;
- the right of private schools to have access to
- publicly-funded guidance counselors;
- displays of nativity scenes on public property; all blue law statutes;
- a city employees’ Christmas pageant at the local zoo;
- public monies for religious foster-care programs; silent prayer in the schools;
- Bible reading after school hours;
- invocation services at college graduation ceremonies;
- the singing of “Silent Night” in the classroom;
- the practice of releasing students from public schools so that they can attend religious instruction held outside the school premises;
- public expenditures for bus transportation for parochial school students;
- all voucher plans;
- tuition tax credits;
- government census questions on religious affiliation;
- the inscription “In God We Trust” on coins and postage;
- the words “under God” in the pledge of allegiance.
The pattern that emerges is that of an organization more interested in playing moral policeman than in being a vigilant watchdog of individual rights. When the ACLU is pressed on charges of religious intolerance, it responds by saying that there is nothing in its official policies that gives credence to such accusations. This is not very helpful: it is to be expected that no respectable organization would articulate its prejudices in writing. But that doesn’t settle the matter.
Take the issue of a moment of silence in the schools. On its face, the ACLU policy reads like a principled defense of strict separation. However, when I asked Roger Baldwin, the founder of the ACLU, whose rights would be violated if a student meditated in the classroom, he exclaimed that “the implication is that you’re meditating about the hereafter or God or something.” That statement reveals more about the real interests of the ACLU than all its official declarations of principle put together. Fortunately, no one has yet found a way to monitor the ACLU’s worst fears.
One of the ACLU’s favorite lines of defense is the injunction that government must remain neutral in the affairs of religion and cannot therefore countenance the slightest accommodation to any one denomination. But being neutral can cut both ways: it can mean practicing across-the-board intolerance of all religions or demonstrating uniform tolerance toward every one of them. The ACLU, which says it prizes tolerance above all else, has chosen to exercise the former option. This can be seen in the Union’s adamant opposition to any religious display on public property, be it a crèche at Christmas or a menorah at Hanukkah. It never seems to occur to the ACLU that the government can practice its neutrality just as effectively by extending to every religion an equal opportunity to display its symbols in the public square.
The ACLU’s interpretation of the First Amendment is especially significant to Catholics. Catholicism guards its theology more jealously than other religions, and is therefore more vulnerable when the state actively seeks to restrict the application of doctrinal prerogatives. As often happens, the ACLU’s substantive relativism collides with the Church’s moral certainty, making harmonious co-existence uneasy at best.
Catholicism is a more public religion than most, and is therefore more likely to be adversely affected when unreasonable church-state lines are drawn. Those religions which are less communal in their public mission can better deal with civil libertarian excesses. Catholicism cannot, and it is for this reason that ACLU policy on religion bears close watch in the Catholic community: Catholics are the ones most burdened when the Union wins in court.
Although abortion is mainly a moral, not a religious, issue the ACLU sees it as being wholly theological. Clarification: to those opposed to abortion, it is exclusively a religious issue; it is a moral concern for everyone else. Prior to the women’s movement of the 1960s, the ACLU either did not count abortion among one of its civil liberties, or saw it as having only marginal interest to the organization. It now has a Reproductive Freedom Project and keeps close tabs on the anti-abortion movement, especially as it receives religious endorsement. Not surprisingly, it is the views of the Catholic Church that most trouble the ACLU.
If all the ACLU did were to fight for a woman’s right to abortion, there would be no reason to question its motives any more than any other pro-choice group. But such is not the case. In its passion for abortion rights, the ACLU has violated the civil liberties of pro-lifers and demonstrated a strong animus against Catholics. To be specific, in the late 1970s the ACLU dispatched an agent to follow prolife Representative Henry Hyde into a Catholic Church for the sole purpose of recording his activities. The Union was so convinced that Hyde’s legislation to restrict abortion funding amounted to the enactment of Roman Catholic “dogma and doctrine,” that it sought to strengthen its case by submitting in court a law brief detailing Hyde’s leisure time activities.
This is what the agent found: Congressman Hyde prayed in church, went to Holy Communion, and was seen in the company of “pregnant women and children” bearing “gifts for life.” Other documentation in a 30-page brief included accounts of participants in right-to-life marches who carried rosaries and statues of the Virgin Mary. When Norman C. Miller, writing in the Wall Street Journal, accused the ACLU of engaging in anti-Catholic bigotry, the best that Union director Ira Glasser could do was to say that the charge was “unsophisticated.” He never disputed its accuracy.
Representative Hyde was not totally surprised by the ACLU action: “I suppose the Nazis did that — observed Jews going to the synagogues in Hitler’s Germany — but I had hoped we would have gotten past that kind of fascist tactic.” The ACLU was not finished with Hyde; it wanted to read his mail. Upon request, Hyde complied. The Union was looking for any detail it could find indicating that Hyde’s support was religiously based. Key words such as “baby” and “human life” were recorded. Hyde later found out about this tactic: “Interestingly enough, I am told the young lady from the ACLU had a big chart, and whenever some citizen would close a letter to me saying ‘God Bless You,’ the ACLU representative would put a little check by the word ‘God,’ thus indicating the evil, nefarious religious influence that was molding my approach to this subject.”
No fair-minded person could help but wonder whether the ACLU is anti-Catholic from the way it behaved when Pope John Paul II came to the United States in 1979. In five of the six cities visited by the Holy Father, the ACLU took action against the government for extending to the Pontiff the kind of courtesies that regularly accompany the presence of any foreign dignitary. Whether it was building a wooden platform for the Pope’s address in Philadelphia, or closing schools and office buildings in Des Moines and Chicago, the local ACLU affiliate detected grave constitutional problems and quickly registered its misgivings in court.
It is sad but true that the Pope’s visit to a communist country, Poland, engendered far less rancor among public officials there than when the Holy Father traveled to America. When he made his second trip to his native Poland in 1979, the authorities provided the Pope with an altar built atop a stadium in Warsaw and hung a towering cross beside it. In this country, no such provision could be made without an ACLU lawsuit. Indeed, the relative inactivity of the ACLU during the Pope’s latest visit suggests that its previous strategy left its mark on public officials. If the Union treated the Queen of England, who is also a secular and religious figure, the same way it did the Pope, then doubts about ACLU anti-Catholicism would be substantially weakened. But it does not. The ACLU also has an official position opposing U.S. diplomatic relationships with the Vatican City State.
Tocqueville understood, in a way civil libertarians do not, that the written law of modern societies was based largely on the unwritten law (mores), and that the unwritten law was based largely on religious law. “Religion is considered as the guardian of mores,” wrote Tocqueville, “and mores are regarded as the guarantee of the laws and pledge for the maintenance of freedom itself.” Like it or not, religious precepts have always formed the nucleus of both the moral code and secular law, and this is why attempts to excise religion from morality, or religion from public life, are as endless as they are fruitless.
It would be tempting to conclude that the ACLU bears an animus against all religions, and is therefore exempt from the charge of anti-Catholicism per se. But such is not the case. The ACLU is quite respectful of the right of the Amish to practice their religion, and even thinks it wise that the state make provisions to accommodate their special needs. The same generosity is afforded the American Indian: the Union’s policy states that it supports the rights of Indian peoples to “retention of their cultural and religious heritage.”
If the ACLU were half as protective of the religious and cultural heritage of Catholics as it is of the Amish and the American Indian, it would put to rest speculation over its anti-Catholicism once and for all. Moreover, to subject some religions to a policy of privatization, while exempting others, is as chauvinistic as it is discriminatory. Apparently, the ACLU thinks that “those kind of people” need religion, while we more modern types can do without. But Catholics are a minority too: isn’t our religious and cultural heritage as important as theirs?
The ACLU continues to insist that it has nothing against Catholics. Maybe so. It’s just the Catholic religion that it finds objectionable.