The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The ACLU once stood for the American Civil Liberties Union. But that acronym has as much vitality as the American Telegraph & Telephone Company. The organization no longer puts civil liberties first. The ACLU should drop the pseudo-acronym, and simply become known as the ACLU, like AT&T, CVS, GEICO, 3M, KFC, SAT, and NARAL. (The last example may be the most relevant name-change).
The latest case in point is a New York Times op-ed by ACLU leaders David Cole and Daniel Mach. They endorse vaccine mandates. And, they write, a forcible government mandate preserves liberty!
In fact, far from compromising civil liberties, vaccine mandates actually further civil liberties. They protect the most vulnerable among us, including people with disabilities and fragile immune systems, children too young to be vaccinated and communities of color hit hard by the disease.
Vaccine requirements also safeguard those whose work involves regular exposure to the public, like teachers, doctors and nurses, bus drivers and grocery store employees. And by inoculating people from the disease's worst effects, the vaccines offer the promise of restoring to all of us our most basic liberties, eventually allowing us to return safely to life as we knew it, in schools and at houses of worship and political meetings, not to mention at restaurants, bars, and gatherings with family and friends.
This argument is very much premised on the progressive account of freedom. The government can promote liberty by forcing people to do things. Solicitor General Verrilli advanced this conception of liberty in NFIB v. Sebelius: requiring people to maintain insurance will allow other people to be free from concerns about health risks. Sort of like FDR's "Freedom from Want." This argument did not go over well at the Supreme Court. Still, I'm stunned to see the ACLU endorse this positivist account of freedom. Well, not stunned they hold these views. Stunned that they would show their cards.
The ACLU also rejects any place for exemptions based on the freedom of religion. And the authors invoke Prince v. Massachusetts (1944):
What about those who object to vaccination on religious grounds? Like personal autonomy, religious freedom is an essential right, but not an unfettered license to inflict harm on others. As the Supreme Court explained more than 75 years ago in Prince v. Massachusetts: "The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death."
Now, I am really stunned the ACLU favorably cited Prince. In this case, a Jehovah's Witness woman was charged with violating child labor laws when she allowed a minor to distribute religious literature. The Court, per Justice Rutledge, upheld the prosecution. This is the precedent the ACLU hangs its hat on! The government pretextually used a child labor law to shut down the distribution of religious liberty for a persecuted minority. I would think the ACLU would line up with Justice Murphy's dissent, which was joined by Justices Jackson, Roberts, and Frankfurter. But no, the ALCU lines up with the majority. Still the ACLU's invocation of Prince is even more problematic.
The case had nothing do with spreading disease. The quoted sentence, at most, was a dictum. Moreover, even in 1944, the Court had not established its modern Free Exercise Clause jurisprudence. The test put forward by Justice Rutledge is inconsistent with Sherbert v. Verner as well as Employment Division v. Smith. And Prince, like Jacobson. presents an escape hatch from modern constitutional law. During the pandemic, courts cited this dictum to uphold restrictions on abortion! And the ACLU gave the case its blessing.
In my new article on Jacobson, I discuss the vitality of Prince. Anyone who wishes to cite Prince, or Jacobson for that matter, should understand the context.