The American Civil Liberties Union has formally reversed its support for the Religious Freedom Restoration Act, signaling that the organization is no longer interested in mounting an ideologically consistent defense of all people of faith. It’s a disappointing retreat on principles for the ACLU, and the organization’s explanation suggests that a singular disdain for Christian belief is the reason.
Louise Melling, the ACLU’s deputy legal director, announced the change in policy in a Washington Post op-ed. Her article provides a useful history of RFRA, which became law in 1993—two years after the Supreme Court refused to let Native Americans smoke peyote as part of their religious practices. Popular sentiment disagreed with the Court, and Congress passed the bipartisan RFRA to safeguard the rights of religious minorities. The law has been used to defend Sikh men from having to shave their beards to serve in the U.S. Army—an outcome the ACLU supported, according to Melling.
So why has the ACLU suddenly decided that RFRA is no good? Melling explains:
In the Hobby Lobby case last year, a Supreme Court majority blessed the use of the RFRA by businesses to deny employees insurance coverage for contraception, a benefit guaranteed by law, if those businesses object on religious grounds and there is some other means of furthering the government’s interests. Religiously affiliated nonprofit organizations such as universities are taking the argument further. They invoke the RFRA to argue not only that they should not have to provide insurance coverage for contraceptives, but also that they should not even have to notify the government that they refuse to do so because, they maintain, notification would trigger the government to intervene to ensure coverage.
Yes, religious freedom needs protection. But religious liberty doesn’t mean the right to discriminate or to impose one’s views on others. The RFRA wasn’t meant to force employees to pay a price for their employer’s faith, or to allow businesses to refuse to serve gay and transgender people, or to sanction government-funded discrimination. In the civil rights era, we rejected the claims of those who said it would violate their religion to integrate. We can’t let the RFRA be used as a tool for a different result now.
It’s time for Congress to amend the RFRA so that it cannot be used as a defense for discrimination. Religious freedom will be undermined only if we continue to tolerate and enable abuses in its name.
In other words, the ACLU believes the peyote-smoking Native Americans and beard-wearing Sikh men are practicing an acceptable degree of religious freedom, but Christians are engaged in discrimination, and discrimination is bad. This seems like a funny place to draw the line, though. If religious freedom does not include the freedom for individuals to peacefully decline involvement in private commercial activities they find objectionable, it's a meaningless concept.
I personally find the argument that a Sikh believer should be able to keep his beard in the Army more difficult to justify (from a civil libertarian perspecive) than the notion that Christian businesses should be free of the burden of covering medical expenses that violate their creeds. Serving in the Army, after all, is not a right—the Army is a government agency. Paying employee’s medical expenses, on the other hand, is a voluntary, private exchange that doesn't (or at least, shouldn't) involve the state in any way.
To be clear, I side with the people of faith in both instances. But so should the ACLU, which risks becoming just another lefty advocacy organization—rather than a true defender of civil liberties—as it continues to stray from the path of impartiality.
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