The ACLU has been hostile to civil liberties for a while now.

Years ago people were furious that the ACLU defended the rights of Nazis to march through the streets of Skokie Illinois, a city that was home to a lot of Jews including holocaust survivors. It was infuriating at the time–how could they side with evil people against those who have been wronged?

The answer was simple: even evil people have a right to free expression, and once a nation goes down the path of suppressing bad speech, the only argument remaining is what constitutes bad speech. Whoever is in power gets to decide that, and the rest of us have to sit down and shut up.

To this day the ACLU website celebrates their defense of the Nazis, and as much as it pains me to say it, they were right to do so.

These days the ACLU has done a 180 on the issue of speech. They now support some censorship, as well as supporting compelling people to perform work celebrating things they find morally repugnant or even against their religious convictions. This is a form of compelled speech as defined by prior court decisions.

The ACLU’s latest foray into suppressing liberty is laid out in their support for a state forcing creators to produce work for events they morally object to. You know the type of case, as it has popped up in the past. The baker who won’t make a wedding cake for a gay wedding, for instance. The ACLU supported the state compelling the baker to perform a service to which he objected.

As with the baker, the current case–which is being heard by the Supreme Court today–has to do with whether a creator can be forced to create for an event to which he has moral objections. The case, 303 Creative v. Elenis, is extremely well covered in Ed’s post from earlier today, so I will not rehash the issue. It all boils down to this: can the state force someone to do something to which they object? Art, which has been classified by the Court as a type of speech, is being compelled. Compelled speech is by definition not free.

The ACLU’s argument as expressed in the NYT is this:

Can an artist be compelled to create a website for an event she does not condone? That’s the question the Supreme Court has said it will take up on Monday, when it hears oral arguments in 303 Creative v. Elenis. The answer would seem to be obviously “no.”

But that’s the wrong question. The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is “expressive” or “artistic.” Should an architecture firm that believes Black families don’t deserve fancy homes be permitted to turn away Black clients because its work is “expressive”? Can a florist shop whose owner objects to Christianity refuse to serve Christians? The answer to these questions would seem to be, just as obviously, “no.”

Actually, to that second set of questions I would answer “yes.” You may or may not like their choices. But they should be free to make them, just as the Nazis should be free to spew their bile. Allowing people to be free only if they do what you want is no freedom at all. This, to me, seems obvious.

Besides, the ACLU is utterly misrepresenting what is at issue in the case: neither the baker nor the website company is rejecting customers based upon their identity. They are rejecting a certain type of business–celebrating specific events to which they object. They serve gay customers otherwise.

Colorado believes it can compel 303 Creative to build a website celebrating gay marriage under their “public accommodations” law. “Public accommodations” are generally understood to be things such as transportation or restaurants–things that cannot be easily replaced. Civil rights laws protect the use of public accommodations by all people.

Public accommodations refers to both governmental entities and private businesses that provide services to the general public such as restaurants, movie theaters, libraries and shops. It does not encompass private clubs that have a membership or dues process.

Colorado is using their public accommodations law to compel art–a form of speech–for protected classes. It seems likely the Court will not agree, but that isn’t my point here.

The fact that the ACLU has come out in support of compelled speech is. They have gone far down the path of backing totalitarian compelled speech.

So why is the first question the wrong one in this dispute? The case before the court was brought by 303 Creative, a business that says it wants to offer wedding website design services to the public but doesn’t want to serve gay couples. Under Colorado’s public accommodations law, businesses that choose to serve the public at large cannot turn people away because of their race, sex, religion, sexual orientation or other protected characteristics. 303 Creative claims that because its service is expressive and its owner objects to same-sex marriage, it can’t be required to obey Colorado’s law. Not to afford it an exemption, the company argues, compels it to speak against its will and violates its free speech rights.

If this sounds familiar, that’s because five years ago the Supreme Court considered a similar case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a bakery asserted a free-expression right to turn away a gay couple that asked it to make a cake to celebrate their wedding. The court resolved that dispute on other grounds, so it did not answer the question. Masterpiece Cakeshop’s lawyers are back before the court, making the same argument with a new client. (303 Creative has actually never made a wedding website for anyone, but it claims that it can’t even get started without a legal ruling that it can turn away gay couples.)

Since the ACLU is using a thought experiment, let me use one as well. Assume those Skokie Nazis didn’t want to march, but instead wanted to rent a ballroom made available to the public located at or owned by a synagog. The space is regularly rented to the public, and in fact is considered a public accommodation by the legal definition.

Should the state compel them to rent the room to the Nazis? Should a hotel owned by a jew rent them a ballroom? Should a Catholic Church be forced to host a transgender bondage and S & M party?

I would say “of course not.” The ACLU probably would too, in the first case, but might not in the second. Because they hate the first kind of behavior, and approve of the second.

This is not how the law should work in a free society. People should be allowed to speak, and also be free to choose not to. People should also be able to determine with whom they do business, and the state should stay out of it. Even if their choices are repellent to us.

The ACLU used to understand that. But they have gone, unsurprisingly, totally woke. Which inevitably means totalitarian.

The A.C.L.U. has been this nation’s leading defender of free speech for more than a century. We firmly believe that states cannot compel artists or anyone else to express messages with which they disagree.

But we filed an amicus brief supporting Colorado in 303 Creative, and we defended the same law five years ago on behalf of the gay couple denied service by Masterpiece Cakeshop. We did so because Colorado’s law does not do what 303 Creative claims it does. Public accommodations laws, which have been on the books since the 19th century, ensure that everyone has equal access to the public marketplace without regard to attributes historically marking them for second-class status. Those laws don’t trigger serious First Amendment concerns because they treat all businesses equally, whether they take corporate headshots or serve burgers and fries. The purpose of these laws is not to dictate the content of anyone’s speech, but to make sure that nobody is denied goods or services in commercial markets for discriminatory reasons.

The ACLU is being totally disingenuous. They would never have taken up the case of Nazis wanting to rent from a synagog, even if the synagog owned apartments or a hotel that are clearly public accommodations. It is the who, not the what that they are fighting for. They approve of the cause, so they take it up. It may violate civil liberties, but it violates the civil liberties of a group they despise.

Ironically their crusade against the civil liberties of religious conservatives does exactly the opposite of what civil liberties should do: carve out spaces where people of radically different values and motives can live peaceably side by side. There is no dearth of website designers or bakers who would happy for more business. Nobody is being denied services. They are being denied the right to compel people to provide services they choose not to.

This is about power. Raw power to compel others. And it is disgusting.

Shame on the ACLU. They lost their way a long time ago. And they deserve all the ridicule we can throw at them.