Sharpening the Swords

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...

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