Lawyer says ACLU wrongly limits religious liberty

Denver, Colo., Feb 15, 2013 / 04:03 am

A lawyer involved in prominent religious liberty cases says the American Civil Liberties Union's opposition to religious exemptions will ultimately discriminate against believers.

Eric Rassbach, deputy general counsel at the Becket Fund for Religious Liberty, said the ACLU supports restrictions that "would relegate many religious citizens into second-class status."

This is shown by efforts aimed at "disqualifying them from many parts of public life, including providing certain kinds of social services or even running a larger business," he told CNA Feb. 11.

The attorney's remarks come in reaction to an address by Louise Melling, a deputy legal director of the ACLU. She addressed the Colorado chapter's 2013 annual membership meeting, held Feb. 9 in Denver on the University of Denver campus.

Melling discussed what she saw as "the limits of religious liberty" in current issues like religious objections to the federal mandate requiring contraception coverage in health insurance plans and the legal position of institutions and businesses with moral reservations about treating same-sex couples like married couples.

She also presented the position of the national ACLU, which has strongly opposed religious exemptions.

"If you're an institution and you open your doors to the public, you hire people of different faiths and you serve people of different faiths, at some level, you should play by the public rules," she said.

"The questions of whether an exemption is appropriate in today's battles are no different than questions of whether we tolerated exemptions in the civil rights era."

Melling compared present controversies to lawsuits against businesses in the American South that refused to serve black customers on religious grounds and lawsuits against religious schools that paid women less than men because of religious beliefs that men are the heads of households.

"We're trying to remedy a second-class status that has been imposed on many of us," she said. "We're seeking to foster equality, but also to end the stigma that has been associated with all that discrimination."

In response, Rassbach said Melling "attempts to tar religious organizations with the broad brush of 'discrimination.'"

"But if her simplistic approach is to be believed, then 'discrimination' is everywhere: people exercise religious preferences in whom they marry, whom they associate with, where they go to school, or whom they choose to be their clergy, among many other areas of life."

"If this is 'discrimination' then we are all discriminators."

He said the law only restricts "invidious discrimination" and not "religious preferences that are a natural and in some cases an essential part of what it means to be religious."  

"The Supreme Court recognized as much in the Hosanna-Tabor case decided last year when it rejected arguments very similar to Melling's," Rassbach said, referencing the Jan. 2012 ruling which upheld the right for religious groups to make employment decisions without government interference.  

During her remarks, Melling also expressed surprise at the more than 40 lawsuits challenging the U.S. Department of Health and Human Services' new requirement that employer health care plans provide coverage for sterilization and contraception, including some drugs that can cause abortion.

Violators face heavy fines, but many organizations and business owners say they cannot provide those drugs and procedures to their employees in good conscience.

Melling, who said the number of lawsuits is "completely unusual," gave her own defense of the mandate.

"Contraception is essential to women's equality," she said. "Contraception let us control decisions about education, about family, about how we structure our lives."

She said that the refusal of contraception, in some sense, means "that the proper role of women is either to be mothers, and accept pregnancies, or not to be sexual beings, except for the purposes of procreation."

"Those are the kind of antiquated stereotypes that used to permeate this country and in a whole different range of ways we said 'no' to," she continued, contending that religious exemptions for companies are "reinforcing or at least supporting that kind of view."

Rassbach, whose legal group has filed many legal challenges to the HHS mandate, was dismissive of this claim.

"Melling's definition of 'antiquated' must be different than the normal sense of that word, since before August 2011 the law did not prevent employers to follow religious conscience with respect to their insurance plan coverage," he told CNA.

"Was there rampant stereotyping going on that no one happened to notice?"

He added that the only federal Court of Appeals to consider the question has rejected the idea that the refusal to provide contraception in health care plans constitutes illegal sex discrimination.

Melling also acknowledged to the ACLU membership meeting that the U.S. bishops are engaged in "a very serious campaign to try to educate people about what they perceive as the dramatic threat to religious liberty."

She noted the U.S. bishops' Fortnight for Freedom campaign and other initiatives like their letters to the Catholic faithful.

Melling also questioned the Obama administration's recent changes to the mandate, which the administration has presented as an accommodation that addresses religious and moral objections from organizations like Catholic archdioceses, colleges, health systems and charities.

"I don't really know what Obama was thinking when he made those accommodations, as if he thought this was going to satisfy these adversaries," Melling said.