ACLU: We don't believe in religious liberty when it conflicts with our antidiscrimination agenda

|The Volokh Conspiracy |

The ACLU was one of the primary proponents of the Religious Freedom Restoration Act, and has used the Act in litigation to protect religious freedom. But now, as ACLU deputy legal direct Louis Melling explains, the ACLU wants RFRA to be limited (she uses the term "amended") "so that it cannot be used as a defense for discrimination."

Melling argues, "religious liberty doesn't mean the right to discriminate." Why yes, it does, or at least it can.

Take Orthodox Judaism. Orthodox institutions (with a few exceptions) won't recognize women as clergy, won't recognize someone as Jewish unless they are Jewish according to halacha, won't eat food unless the oven was turned on by a Jew, won't recognize Jewish-Gentile intermarriages as legitimate "Jewish" marriages, won't recognize same-sex marriages, or, in most cases, the legitimacy of same-sex romantic/sexual relationships, wouldn't hire a teacher who is pregnant out of wedlock or openly homosexual and sexually active because that individual would have flouted religious law, and so on.

All of these things are "discrimination," and some of them are, or plausibly could be in the future, illegal (though some would be protected by the so-called "ministerial exception" independent of RFRA).

The ACLU or others are free to argue that the interests of those who may face discrimination from religious organizations, institutions, and individuals should trump the right to religious liberty in some or all cases.

But let's not pretend that because something constitutes "discrimination," it can't also be "religious liberty," and that by banning the former when does for religious reasons we are limiting the latter.