Posted by Eugene Volokh:
The ACLU and Religious Accommodations:
http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml#1236897163
The [1]Investor's Business Daily editorial that I mention in my
[2]post below on religious accommodations also specially faults the
ACLU for declining to object to such accommodations:
Minnesota is offering a program to Muslims who want to buy a home
but don't want to break their religion's laws about interest. Where
are the civil libertarians who want to keep church and state
separated?
The Minnesota program, the first in the nation, will be
administered by the state's housing agency, which will buy homes,
with taxpayers' dollars, and resell them at higher prices to Muslim
buyers.
To circumvent Islamic Shariah law, which, we're told, forbids
Muslims from buying or selling loans that charge interest, the
transaction will have higher up-front costs, including the amount
of interest that would have been charged over the life of the loan.
This is a clear mixing of religion and state, which runs afoul of
the Constitution and should incite the American Civil Liberties
Union to launch a complaint and file a lawsuit. Yet we've seen no
word from the group that recently filed a lawsuit against a Muslim,
mosque-based charter school that takes public funds.
Is the organization acting cautiously, afraid to anger a group
whose more enraged members have gained a reputation for taking
advantage of our politically correct culture and bullying officials
to get their way? Have ACLU leaders lost their nerve, fearful
activists will target them? They've already seen Minnesota
officials, who, when pushed by activists demanding preferential
treatment for Muslims, agreed to provide foot-washing facilities on
the campuses of several universities.
Surely if the Minnesota home-buying program -- called Murabaha
financing -- were reserved for only Christians or Jews, the ACLU
would have roared by now.
But it hasn't....
I'm generally skeptical about claims that some group is being
inconsistent or untrue to its principles, or that had this or that
been different the group would surely have complained. This is
especially so because such claims are often made by people who appear
to have little sympathy with the group and thus little knowledge of
the group's underlying reasoning. I can't be sure of that as to the
IBD -- for all I know the editorial might have been written by someone
who is well acquainted with the ACLU's perspective on the Religion
Clauses -- but it seems likely.
The Justices who are among the ACLU's greatest heroes -- Justices
Brennan, Marshall, and Blackmun -- had long taken a view that strongly
supports many kinds of religious accommodations. Consider Justice
Brennan's opinion in Sherbert v. Verner, the 1963 case that mandates
religious exemptions for Sabbatarians from requirements that
unemployment compensation claimants be available to work Saturdays.
Consider the three Justices' dissent from Employment Division v.
Smith, which held that religious exemptions are generally not mandated
by the Free Exercise Clause, and in particular that religious peyote
users weren't entitled to exemptions from peyote laws. Or consider a
range of other votes cast by these Justices in favor of exemptions for
the Amish, Jews, Sunday-observer Christians, American Indian religious
groups, and others.
The ACLU has likewise long supported such accommodations. Of course
it's harder to evaluate its record on this since it is not as visible
as the Justices', and is necessarily more mixed because individual
chapters generally make their own litigation decisions. But it's safe
to say, I think, that religious exemptions for religious observers
have often been an ACLU issue just as they have been a Brennan,
Marshall, and Blackmun issue.
To be sure, there have been two major limits on such support, both
from the ACLU and these three liberal Justices. First, the liberal
Justices and the ACLU have viewed the Establishment Clause as barring
even many forms of evenhanded aid that end up in the hands of
religious institutions -- for instance, school aid programs that
equally benefit public schools, private secular schools, and private
religious schools. Their premise has been that government funds
generally can't go even indirectly, and even as part of an evenhanded
program, to the teaching of religious views (except in ill-defined
contexts; I [3]disapprove of this view, but here I am just trying to
describe it). So even though school choice programs may well be
defended as accommodations of religious objectors to public secular
schooling, the Justices and the ACLU would have rejected them. But
this isn't in play in the Minnesota case, because no government is
money is going to be used by religious institutions for the teaching
of religious doctrine. (If anything, Sherbert involved more of an
financial benefit to religion than this case does.)
Second, any regime of exemptions for religious observers has to be
only a presumption in favor of exemptions, and only a weak presumption
at that: Clearly sometimes the exemptions must be denied, for instance
as to murder laws, trespass laws, most tax laws, and a vast range of
other contexts. Naturally, one's view about when there's a
sufficiently "compelling" interest to justify an exemption varies
depending on one's ideology. My guess is that the ACLU, for instance,
has on balance been skeptical of claims for religious exemption from
many antidiscrimination laws, because they view the interest in
preventing discrimination as almost always "compelling." But again
there's no reason to expect the ACLU to be skeptical here.
So the ACLU, and what one might call the ACLU-friendly wing of the
Court -- Justices Brennan, Marshall, and Blackmun (I speak especially
of the later Blackmun, rather than Blackmun in his early, fairly
conservative years) -- have broadly supported religious exemptions, at
least where no funding to religious institutions or schools is
involved, and no very strong government interests for denying the
exemptions have been present. There's nothing surprising or cowardly
or unduly favorable to Muslims over Christians or Jews in the ACLU's
stance.
The ACLU and the ACLU-friendly Justices may well have been wrong in
their Religion Clauses views. (I actually opposed both much of their
[4]Establishment Clause thinking as to evenhanded aid programs and
their [5]Free Exercise Clause support for constitutionally mandated
exemptions from generally applicable laws.) But there's no reason in
this case, I think, to fault them for supposed inconsistency with
their own perspectives.
References
1.
http://www.investors.com/editorial/editorialcontent.asp?secid=1501&status=article&id=321662749216001
2. http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml#1236894344
3. http://www.law.ucla.edu/volokh/equal.htm
4. http://www.law.ucla.edu/volokh/equal.htm
5. http://www.law.ucla.edu/volokh/relfree.htm
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