On June 25, one day before the U.S. Supreme Court declared that a man can marry a man and a woman can marry a woman, the Washington Post published an op-ed by Louise Melling, the deputy legal director of the American Civil Liberties Union. Miss Melling’s announcement that the ACLU would no longer support the federal Religious Freedom Restoration Act was overshadowed by Justice Kennedy’s majority opinion in Obergefell v. Hodges the next day, but the two actions were of a piece. Kennedy pretended in Obergefell that the legalization of “gay marriage” would not damage the free exercise of religion in the United States, but Miss Melling revealed the truth. RFRA, she argued, may have served a legitimate purpose in the past, but 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.”
Melling claimed that the ACLU has had second thoughts about RFRA (which was signed into law by President Clinton in 1993) for “more than 15 years,” but that hasn’t stopped their lawyers from filing suit under it. So what has changed? In the past, Melling argues, RFRA helped protect those “whose religious expression does not harm anyone else.” Today, however, “People turned away by an inn or bakery suffer the harm of being told that their kind isn’t welcome.” While two gay men could choose a different baker to make their “wedding” cake, and two lesbians could find a different establishment to host their destination “wedding,” the ACLU no longer believes that they should have to suffer such a horrible burden. Anyone who acts upon the belief that the U.S. Supreme Court cannot arbitrarily declare that the grass is blue and the sky is green is ipso facto harming those who believe that God cannot define marriage but Justice Kennedy can.
Had the ACLU’s decision to drop its support for RFRA meant only that its lawyers would no longer take on cases from clients who asserted claims under RFRA, Miss Melling’s op-ed would hardly have been necessary. But Melling showed the ACLU’s cards toward the end of her piece, when she declared that “The RFRA wasn’t meant to force employees to pay a price for their employer’s faith, or to allow businesses to refuse to serve gay and transgender people, or to sanction government-funded discrimination.” Clearly, the ACLU wasn’t simply signaling the kinds of cases it would no longer take, but also the kinds of cases it would take in the future.
Now the other shoe has dropped. On October 1, an ACLU press release revealed that “The American Civil Liberties Union and the American Civil Liberties Union of Michigan announced a federal lawsuit today filed on behalf of their members against Trinity Health Corporation, one of the largest Catholic health systems in the country, for its repeated and systematic failure to provide women suffering pregnancy complications with appropriate emergency abortions as required by federal law.”
Trinity Health will almost certainly base its response to the lawsuit on RFRA, which makes the ACLU’s abandonment of support for the law rather convenient. But Trinity has an even bigger problem on its hands: Its hospitals receive federal funding, and, the ACLU claims, “A hospital’s failure to provide pregnant women appropriate emergency care, including an abortion when the circumstances warrant, violates a federal law called the Emergency Medical Treatment and Active Labor Act . . . ”
Just as granting the federal government the authority to define marriage implied granting it the authority to redefine marriage, accepting federal funding has always been a double-edged sword. For over 20 years, RFRA has dulled one of those edges. Now, Miss Melling and her colleagues are bringing out the whetstones.
It’s only a matter of time before the ACLU, unshackled from the constraints of the Religious Freedom Restoration Act, scores a victory against Trinity or another Catholic healthcare system—or a church that receives tax-deductible donations but refuses to perform a gay wedding. In the current political and cultural climate, additional legislation—should it even pass Congress—will offer little protection, and not for very long. The only permanent solution is for religious institutions to sharpen their own swords and to slice through the ties that bind them to a state that is increasingly hostile to Christianity.