The Investor's Business Daily editorial that I mention in my 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 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 Establishment Clause thinking as to evenhanded aid programs and their 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.