For some time, the ACLU has been lukewarm at best toward religious freedom, but now they have officially come out against it:
The ACLU supported the RFRA’s passage at the time because it didn’t believe the Constitution, as newly interpreted by the Supreme Court, would protect people such as Iknoor Singh, whose religious expression does not harm anyone else. But we can no longer support the law in its current form. For more than 15 years, we have been concerned about how the RFRA could be used to discriminate against others.
It’s useful to start by looking at what the 1993 Religious Freedom Restoration Act actually says. The key provision says:
(a) In general
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
This means that “strict scrutiny” (the standard used for freedom of speech) applies in all religious freedom cases. This was the precedent until 1990, when the Supreme Court ruled the government could burden religious freedom pretty much as much as it wanted, provided that the law applied to everyone equally. Thus, for example, the government could ban circumcision — a key ritual for Jews for thousands of years — provided the ban applied to everyone equally. (Alas, this example is not entirely hypothetical.) The RFRA sought to restore the old standard; it passed almost unanimously and was signed by President Clinton. (The Supreme Court later narrowed it to federal cases only, which is what occasioned many states to pass their own RFRAs.)
So if you say you are against the RFRA, you need to say what you think should change. You have three possibilities: (1) the government should be able to burden religion without a compelling government interest, (2) the government should be able to burden religion more than necessary, or (3) both. So which is it, ACLU?
Okay, but what about discrimination? The ACLU opines:
In the states, legislators, governors and businesses are citing state religious freedom restoration acts to justify all manner of discrimination against gay men and lesbians, including at commercial establishments.
Okay, perhaps they have been citing it, but how many of them have been successful? I believe the answer is zero. (Indeed, hardly any have even gone to court.) The reason is that ending discrimination has been found to be a compelling government interest, and prohibiting it is arguably the least restrictive way of ensuring it doesn’t happen. (ASIDE: As a libertarian, I think that all virtually exchanges should be voluntary. But we’re talking here about what the law is.)
Is the ACLU conceding that ending discrimination is not a compelling government interest? That would be a surprise. And if not, what are they saying? They don’t say; in fact, they say nothing about the actual content of the law at all.
I think the whole discrimination thing is a smokescreen. This is what it’s all really about:
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.
Yes, it did. The Obama administration (not the Congress, mind you, just the HHS department) sought to force Christian employers to violate their beliefs by paying for abortion drugs. This plainly violates strict scrutiny, since the government could easily arrange for employees to have such drugs without requiring the employer to pay for them — for example by the government paying for them itself.
This would be just like the government mandating that all restaurants serve bacon (yum!) — including kosher and halal restaurants.
Except that it’s not Jews or Muslims. It’s not native Americans. It’s not Sikhs. It’s Christians, and I think that’s the point.
The ACLU suddenly realized that it was against religious freedom as soon as it was used by Christians, instead of various religious minorities.