Come on. How many will truly be surprised to see the American Civil Liberties Union backpedal away from an enumerated civil right in the Constitution, now that the cognoscenti considers it a form of bigotry?
I feel so old. I remember when the ACLU was a civil liberties organization. http://t.co/oe1EiYAXja
— James Taranto (@jamestaranto) June 27, 2015
— Clarence Whorley (@ClarenceWhorley) June 27, 2015
The organization that once went to court to ensure that the American Nazi Party could parade through Skokie, Illinois in an exercise of free speech no longer wants to support the exercise of religion guaranteed in the same First Amendment. The ACLU’s deputy legal director published the organization’s backpedaling from the Religious Freedom Restoration Act the day before the Obergefell decision that will make it even more critical. If it’s not being used to help Muslims in prison and Native Americans in unemployment insurance, writes Louise Melling, just skip 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. As the events of the past couple of years amply illustrate, our fears were well-founded. While the RFRA may serve as a shield to protect Singh, it is now often used as a sword to discriminate against women, gay and transgender people and others. Efforts of this nature will likely only increase should the Supreme Court rule — as is expected — that same-sex couples have the freedom to marry. …
Yes, religious freedom needs protection. But religious liberty doesn’t mean the right to discriminate or to impose one’s views on others.
That last declaration is rather curious, considering all of which precedes it in Melling’s argument. She decries its use in the Hobby Lobby case, despite the fact that the HHS contraception mandate is government explicitly imposing its views on the business owners in contradiction to their right to live their faith and their views on abortion and the nature of human life. Melling also objects to RFRA defenses for people like bakers and photographers who are being forced to either participate in same-sex marriage ceremonies that violate their religious tenets or pay massive fines to governments, and in some cases endure “sensitivity training” that forces the government’s views on private citizens. Melling also faults the Catholic Church for receiving government funds to reimburse its service to refugees without knuckling under to government edicts to endorse and facilitate abortions, cooperation with which would prompt excommunication automatically for Catholics.
All of these cases involve government imposing its ideas on citizens, not the other way around. Catholics aren’t physically preventing people from getting abortions; bakers and photographers aren’t stopping people from getting married; Hobby Lobby isn’t preventing its employees from using abortifacients. They are declining to participate in those actions out of sincere religious belief and their First Amendment right to the free exercise of religion. The Constitution separates that from the freedom of speech because it doesn’t just encompass speech; if it did, the passage would be entirely redundant. One would think a group so dedicated to “civil liberties” that it defended the right of neo-Nazis to parade past Holocaust survivors would know that.
Note that in each of these cases, RFRA only allows for a stricter scrutiny on government action, allowing for a better defense on government infringement on religious expression. It’s not a Get Out Of Jail Free card, but simply a requirement that judges find that the state interest in these cases is both compelling and serviced by the least intrusive method possible. Courts use RFRA as a balancing test, another point one would assume that the ACLU would have figured out, too. If people use it out of sheer discrimination, courts will reject that use.
The Left is trying to shrink the meaning of the First Amendment’s language. It protects the people from laws “prohibiting the free exercise” of religion, even before protecting speech. “Exercise” means more than just worship, but the ability to live one’s religious beliefs without incurring government penalties for it. Until relatively recently, government actions such as Loving and Griswold removed government interventions in these intimate areas of human interaction, but the HHS contraception mandate and now Obergefell intrude on decisions where Americans rely on religious faith most, both in the marketplace and in homes.
The biggest threat to civil liberties is an ever-growing regulatory state and a government that rules by whim and the current passions of politics. It’s not surprising to conservatives to the ACLU desert the field now that the going has gotten tough. It just confirms our long-standing assessment of the leftist clique.
Update: Francis Beckwith warned about this two years ago:
If the requirement to embrace orthodoxy becomes optional, however, it follows that it is wrong for a church to require that its members believe that there are right and wrong beliefs. Consequently, “when orthodoxy is optional,” as Fr. Neuhaus put it, “it is admitted under a rule of liberal tolerance that cannot help but be intolerant of talk about right and wrong, true and false.”
For this reason, a new “orthodoxy” will arise, one that entails that it is in fact wrong for a church to act as if there are right and wrong theological beliefs. Thus, the cleric who suggests an ecclesiastical trial to prosecute an alleged heretic will be marginalized and punished by his superiors for his suggestion.
Inspired by Fr. Neuhaus’ Law, I’d like to offer my own maxim, one that applies to law, politics, and culture in the same way that Fr. Neuhaus’s applies to theology: “Whenever a practitioner of a traditional vice appeals to the right of privacy as the justification for the state to leave him alone to engage in that vice, he will inevitably demand that the state require that those who morally disapprove of his practice cooperate with it, either materially or formally.”
To which we can add this proviso: Progressive groups who pushed the right of privacy in defense of liberty will be in the vanguard of switching over to demands for forced participation. Looking at you here, ACLU.