Investor's Business Daily writes:

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....

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 ....

[Are potential opponents of the proposal] 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? ... [Are they] 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.

It's not within the legitimate duties of government to ensure that members of certain religions can buy homes....

I think IBD is wrong about this (and about its criticism of the ACLU on this, more on which in a separate point). Here's why.

The government routinely faces situations where certain government benefits are set up in ways that keep certain religious groups from taking advantage of them. Often it's too burdensome or expensive to restructure the benefit to accommodate those groups. But often it is possible, and when it is possible, I think it's eminently proper for the government to do so. And it is certainly routinely done for groups other than Muslims, so the implication that Muslims are getting special treatment because of modern "political[] correct[ness]" strikes me as quite unsupported.

1. Let's look at a very simple scenario: Imagine that a government office runs a cafeteria for employees, and imagine that it is always careful to provide some pork-free dishes for its Jewish employees, and some vegetarian dishes for Buddhist employees and some Jews who will only eat vegetarian dishes in nonkosher establishments. (Obviously some Jews won't eat anything in nonkosher establishments, but I know some Jews who will eat vegetarian dishes.)

This makes sense for the government, since it keeps its employees happy. It makes sense for the employees. And it imposes little burden on anyone. Of course, if it was a matter of buying wholly kosher food just in case the one observant Jewish employee wanted to eat it, and the food cost more, used up shelf space, and often got thrown out uneaten, the analysis might be different. But when there are a considerable number of people who are helped by this program, it should be perfectly acceptable. (I should note that some nonreligious vegetarians -- or for that matter nonvegetarian vegetable lovers -- might enjoy having the vegetarian dishes as well, but I don't think this affects the analysis.)

2. Or consider another common scenario: The government offers people a job, but requires employees to follow various rules. If the rules are important to the job, it may be sensible to require everyone to follow them. But if the rules are peripheral -- for instance, a no-headgear rule, or a rule requiring everyone, including women, to wear pants, where there is no safety reason for the requirement -- it makes sense that the government would create an accommodation, for instance for men who want to wear yarmulkes, or for women who feel it wrong for women to wear pants. Federal antidiscrimination law requires such accommodations when they are not burdensome, both for private and public employers. But whatever you think of that, I think it's quite proper for an employer to make such accommodations.

3. Likewise, unemployment benefits are generally available only for people who are willing to take reasonable job options that they are offered. This would sometimes mean that Sabbatarians, such as Seventh-Day Adventists and Orthodox Jews, would lose unemployment benefits because they wouldn't take offered jobs that required them to work Saturdays. In 1963, the Supreme Court held (in Sherbert v. Verner) that Sabbatarians had to be exempted from those requirements. I don't think Sherbert was correct, at least as to its most expansive reasoning, and I think there may be good reasons to deny Sabbatarians such an exemption, which does give them something of an advantage over others. But the existence of this principle illustrates that religious accommodations began long before there were Muslim claimants, and that Muslims are asking for accommodations that are not far different from those that other religious groups have gotten.

4. On to this particular proposal: As best I can tell, the financing option is available to everyone, not just Muslims; it's just that Muslims will find it useful and others won't. Moreover, nothing I've seen suggests that Muslims are getting a significant secular benefit here, such as lower aggregate rates.

If I'm right on this, then what we have here is much like the pork-free food option in the cafeteria line, or a break from no-headgear requirements (though even less troublesome than such a break, because it's available to everyone, not just religious objectors). The government set up a general program that it was hoping lots of people could take advantage of. To its surprise, some people have a religious objection to the program, and thus can't benefit from it. Fortunately, it's pretty cheap to slightly tweak the program in a way that doesn't undermine its core purposes, and that doesn't materially burden other beneficiaries or the taxpayers, but that lets religious objectors -- here Muslims, but in other contexts Jews, Christians, Buddhists, and others -- fully participate in the program.

That is the extension of a generally worthy American tradition -- Muslims getting roughly similar religious accommodations that other religious groups have long gotten. It is not some rare departure from "separat[ion]" of "church and state" explainable only by modern political correctness and the supposed rage of a particular group.

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.