ACLU Abandons Religious Freedom to Side With Gay Marriage

Bishops conference legal officer disputes Civil Liberties Union

An official at the United States Bishops Conference charged that the American Civil Liberties Union’s backing away from support of the federal Religious Freedom Restoration Act
is part of an "ongoing effort to force people of faith out of the public square."

Hillary Byrnes, assistant general counsel for the U.S. Conference of Catholic Bishops, in a statement issued to Aleteia, challenged an ACLU official’s characterization of the bishops misusing the 1993 law designed to protect persons acting on their religious beliefs.

In an
op-ed in the Washington Post June 25, Louise Melling, the American Civil Liberties Union deputy legal director, wrote that while the ACLU once supported the Religious Freedom Restoration Act, it is concerned now that the law can be used to trample the rights of others, particularly homosexuals:

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 [religious practices], it is now often used as a sword to discriminate against women, gay and transgender people and others.

Melling’s piece was published two days before the Supreme Court ruled in
Obergefell v. Hodges that states may not deny marriage licenses to same-sex couples. But she predicted that a favorable ruling for same-sex "marriage" would only lead to an increase in the use of RFRA to "discriminate" against gays. She cited several examples for her concern:

The Supreme Court’s Hobby Lobby decision, which permitted a for-profit business to deny employees insurance coverage for contraception;
States attempting to enact religious freedom bills that protect businesses and individuals whose religious convictions make it sinful for them to cooperate in same-sex "weddings," such as in baking a cake, renting a hall or providing photograhy services for such an event.
Organizations that receive government funding using religious grounds to hire or not hire certain individuals.

She specifically cited the US Catholic bishops conference as an example:

The U.S. Conference of Catholic Bishops says that the RFRA means it is entitled to taxpayer funding to assist unaccompanied immigrant minors, many of whom have been raped, despite the fact that it refuses to provide those teens access to or referrals for abortion and contraception services, as required by law. It goes so far as to assert that Catholic organizations can’t be required to tell the government when they have a teen who needs care—because then the government might step in and help.

Not so, says the bishops conference’s Byrnes:

RFRA provides a balancing test to determine whether the government has substantially burdened someone’s free exercise of religion. Providing access to or referrals for abortion and contraception “services” is not required by law. The Hyde amendment prohibits federal funding of abortions except in limited circumstances, and even in such circumstances, a faith-based entity would not be forced to participate. Further, it is arrogant to suggest any migrant would automatically consider the taking of a life to be "care." Many of the migrants are devoutly religious and grateful to be in the care of someone who will respect their values and not force abortion upon them. The Catholic Church has a long commitment to serving migrants, refugees, and other people on the move, who often seek help from trusted faith-based providers. We simply seek the freedom to continue to serve these vulnerable populations.

Melling called on Congress to amend the RFRA "so that it cannot be used as a defense for discrimination." But a year ago, at least one commentator was calling not for an amendment of the act but a repeal of it. Katha Pollitt wrote in
The Nation:

It’s clear that the main beneficiaries of RFRA are the Christian right and other religious conservatives. RFRA has given us the Hobby Lobby decision permitting religious employers to decide what kind of birth control, if any, their insurance plans will provide. It’s given us “conscience clauses,” in which medical personnel can refuse to provide women with legal medical services—culminating in the truly absurd case of Sara Hellwege, an anti-choice nurse-midwife who is suing a federally funded family planning clinic in Tampa for religious discrimination because it declined to hire her after she said she would refuse to prescribe “abortifacient contraceptives,” i.e., birth control pills.

The public interest law firm Alliance Defending Freedom denies that RFRA has ever been used to discriminate against homosexuals. Joshua Tijerina, an ADF spokesman, wrote, for example, about
Barronelle Stutzman, a florist who willingly served a gay friend, Rob Ingersoll, and his partner for nearly 10 years:

She arranged flowers that the couple sent to one another for birthdays and other occasions. In one very specific instance, when Rob asked her to design the flowers for his same-sex wedding, Barronelle gently told him that because of what her faith teaches her about marriage she could not use her artistic talents to celebrate a same-sex wedding, and she kindly referred him to other florists who she knew would do a good job for him. Does that mean that she was turning LGBT people away at the door and not serving them? Absolutely not, did not happen, and again, she served the same-sex couple for years and she and Rob counted each other as friends.

John Burger is news editor for Aleteia’s English edition.