Where the ACLU went wrong on religious freedom

“The Dred Scott of First Amendment Law.” Those jarring words were offered before Congress in 1993 to explain why there was such an urgent need for passage of the Religious Freedom Restoration Act (RFRA). The speaker was then-ACLU President Nadine Strossen, and the focus of her ire was the Supreme Court’s recently decided Employment Division v. Smith, the case that made RFRA so necessary.

The ACLU’s support of RFRA placed it within the mainstream of liberal groups that led to the law’s near unanimous passage. Senator Ted Kennedy (D-Mass.) and then-Representative Chuck Schumer (D-N.Y.) sponsored RFRA. The Anti-Defamation League and People for the American Way supported it. Bill Clinton signed the law surrounded by a multi-faith coalition composed of many proud liberals. Religious freedom was a constitutional right firmly embraced by progressives.

{mosads}I liked the ACLU that protected all our First Amendment rights — including religious freedom.  But like a Prodigal Son, it has wandered from the place it once called home. There are honorable exceptions, but the ACLU and many of its allies on the left are now increasingly hostile to actual religious freedom, which includes the ability to exercise one’s beliefs openly in the public square and not just within the narrow confines of a place of worship.

Examples abound:

1. The ACLU launched a lawsuit that would force most of the nation’s religious adoption agencies out of business, limiting the difficult choices facing birth mothers and forcing children into a broken government run-system. An ad campaign coinciding with the lawsuit makes no policy arguments, but instead relies on cartoonish portrayals of Christian adoption workers as violent bigots.  
2. The California legislature passed a bill (with strong ACLU support) that would require churches and faith-based charities to employ people who procure abortions. The bill was too extreme even for liberal Governor Jerry Brown, who wisely vetoed it.
3. Democratic Senators — with well-coordinated public relations help from the ACLU — declared as unfit for government service a Catholic judicial nominee and an evangelical deputy cabinet secretary based upon beliefs that tens of millions of American Catholics and evangelicals would recognize as their own. This religious test drew criticism from even liberal legal experts. Liberals have criticized such religious tests when promoted by right-of-center figures like Alabama’s Roy Moore, and rightly so.

Surprisingly, the ACLU has refused to embrace religious freedom even when doing so would help its own clients. In its high-profile litigation challenging President Trump’s travel ban, conspicuously absent from the ACLU’s legal briefs is any claim that the executive order violates either the First Amendment’s Free Exercise Clause or the Religious Freedom Restoration Act. These would be strong legal claims, and in a parallel case, leading constitutional scholar Neal Katyal makes both arguments. But the ACLU is so committed to a narrative promoting the “dangers” of religious freedom that it is unwilling to engage religious freedom protections even to shield its own clients.

Consider the implications of the ACLU’s position that religious freedom is perfectly fine so long as it does not come into conflict with any other important right or value. If that thinking were applied to other constitutional freedoms, it would render the Bill of Rights meaningless.  How much freedom of speech or of the press would there be if it were allowed only when it didn’t give offense?

Consider also the protections given to conscientious objectors to military service that date to the country’s founding era. It’s hard to imagine another setting in which third-party harms are more implicated than when someone else must assume the life-and-death risk of military service in the place of a pacifist religious objector.

In the real world, every constitutional right will inevitably bump up against some other value. That’s precisely why some core rights are written into the Constitution.

But there’s still hope.

Old school civil libertarians like Governor Jerry Brown — normally a strong ACLU ally — still have influence. Governors and other elected officials, faced with the true implications of shutting down faith-based charities serving the most vulnerable among us, can still pull back from the progressive abandonment of religious liberty.

The vigorous protection of everyone’s First Amendment rights can seem politically inconvenient in the moment. But over the long run we all benefit from these core protections — even when we might not agree with some of what’s being protected. There was a time when the ACLU understood this.  If the ACLU is Religious Freedom’s Prodigal Son, then we should all be anxious to see it return home.

Tim Schultz is the president of the 1st Amendment Partnership, an organization dedicated to protecting the religious freedom of Americans of all faiths, primarily through advocacy in state legislatures.