Melling argues, “religious liberty doesn’t mean the right to discriminate.”
Why yes, it does, or at least it can.
All of these things are “discrimination,” and some of them are, or plausibly could be in the future, illegal (though some would be protected by the so-called “ministerial exception” independent of RFRA).
The ACLU or others are free to argue that the interests of those who may face discrimination from religious organizations, institutions, and individuals should trump the right to religious liberty in some or all cases.
But let’s not pretend that because something constitutes “discrimination,” it can’t also be “religious liberty,” and that by banning the former when does for religious reasons we are limiting the latter.
David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA. His latest book, Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law, will be published in November.