One of the notable trends in the current Supreme Court’s religion jurisprudence is the shrinking of the establishment clause as the free exercise clause grows ever more robust. The former prohibits the government from sponsoring a religion, while the latter protects individuals’ right to exercise their religion as they see fit. As Justice Sonia Sotomayor put it Tuesday, dissenting in a case requiring Maine to funnel taxpayer dollars toward religious education: “What a difference five years makes. In 2017, I feared that the Court was ‘lead[ing] us … to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.’ Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.”
But as new protections for religious liberty are allowed to swallow up other freedoms, the vexing question of religious liberty for whom is never fully addressed. After a series of recent cases in which the Supreme Court appeared to privilege the religious freedoms of Christian death row inmates, some efforts were made to ensure that adherents of any faith would be able to claim protection under the court’s ample new views on religious freedom.
Enter a synagogue in Florida, which filed a complaint in state court last week claiming that the Florida legislature’s new law, which goes into effect July 1, limiting the window in which women can access abortions, violates the state constitution’s religious liberty provisions, which afford even broader protections than those of the federal Constitution.* In the complaint, petitioners note that while Florida seeks to ban abortion at 15 weeks’ gestation, “in Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act.”
This kind of religious liberty claim, assuming away other procedural issues, should be recognizable to those who have successfully obtained religious exemptions from contraceptive coverage requirements under Obamacare, or from civil rights laws protecting LGBTQ Americans, or from public health rules limiting the size of religious gatherings during the pandemic. But will those who have defended the Supreme Court’s expansive approach to religious freedom accept that adherents of other faiths might also have sincere religious objections to prohibitions on abortion? The answer to that question hasn’t been addressed head-on, but it was surely predictable: Not every religion has an equal claim to religious liberties, and some religious adherents can be deemed less worthy of those claims than others.
Some “tentative thoughts” to that effect were published this week by Josh Blackman, a professor at South Texas College of Law Houston, who contends that the religious liberty interests advanced by Florida’s Congregation L’Dor Va-Dor can be dismissed if proponents of religious liberty can get past their squeamishness about challenging the sincerity of the Jews seeking exemptions from the Florida law.* There are many reasons not to engage directly with these tentative thoughts, chief among them that they appear to be doctrinally unsound. But we have learned over recent years that right-wing ideas that are “off the wall,” and that shouldn’t be given oxygen, can be rapidly absorbed into mainstream legal thinking when allowed to go unchecked. And that makes Blackman’s suggestion that only Orthodox Jews have sincere religious duties not only offensive but dangerous.
Blackman posits that Jews who are not Orthodox cannot, in effect, “sin” in ways that burden their religious faith. Why? “For Christians, perhaps, quantifying the consequences of committing a sin is easier. For Jews, however, the issue is far more complicated. Judaism is not a centralized religion. There is no Jewish equivalent of a Pope.” Further, he writes, “We often speak of ‘Orthodox,’ ‘Conservative,’ and ‘Reform’ Jews, but even within these categories, there is no official or standardized set of teachings. Every Congregation, indeed, every Rabbi, may follow the teachings in different fashions.”
As Blackman sees it, “One of the biggest differences between Orthodox Judaism and Reform Judaism turns on the treatment of Jewish Law, known as halacha. Orthodox Jews tend to view halacha as binding. Reform Jews tend not to.” He urges that when Reform or Conservative Jews claim that Jewish law requires abortion in many health- and life-sustaining circumstances, this claim is not serious because “if virtually every other facet of halacha is not binding on members of this congregation, how could it be that this one teaching on abortion is binding—so binding, that a state’s prohibition of that teaching actually substantially burdens the free exercise of religion?”
As practicing Jews, we could pause here to comment on how disrespectful and disparaging it is when legal pundits describe our religious commitments as fickle and shifting by the moment. But here is Blackman declaring that Jews have “no obligation to be consistent. A Jew could hold one opinion in the morning, and then change his mind over lunch, and go back to the original position after dinner. The old saw, Two Jews, Three Opinions, is apt.”
After characterizing the vast majority of American Jews as lacking obligations—and as thus having no affirmative duties of consistency or integrity—seemingly because the Jewish conception of religious authority is not the Christian one, Blackman makes egregious legal errors that should worry adherents of any minority faith and nonbelievers as well.
First, in order to get a religious exemption under the First Amendment or under religious freedom laws like the federal Religious Freedom Restoration Act, or RFRA, religious believers must show that the government has imposed a “substantial burden” on their beliefs or practices. If the government threatens to fine you or put you in jail for doing something that conflicts with your religion, that’s usually enough to count as a “substantial burden.” Under that standard, pretty much all abortion restrictions would qualify.
But Blackman disagrees. He says that “to claim that their religious exercise is substantially burdened, I think there has to be some broader showing that the religious belief is obligatory in nature.” And since, according to Blackman, liberal and progressive Jews can pick and choose their religious commitments, they don’t in fact have any “religious obligations.” And since they don’t have any obligations, they can’t show that the government has substantially burdened them. And since there’s no substantial burden, they can’t claim religious exemptions from abortion laws, or any other law for that matter.
Now, one problem with this argument is that many Conservative and Reform Jews sincerely believe that they do have religious obligations. Because we do. (Blackman seems to feel that all non-Orthodox Jews “pick and choose” because he does.) But the fact that other Conservative and Reform Jews have these sincere beliefs is no obstacle for Blackman, who says that such Jews don’t really believe their faith requires that women have abortions. In this telling, Jews who claim otherwise are lying. And courts shouldn’t give exemptions to liars. Jewish women who seek abortion exemptions are like the “boy who cries wolf,” and Blackman thinks courts would do best to ignore them.
The basic legal premise of Blackman’s argument is absolutely wrong. That’s because the government can impose a substantial burden under the First Amendment and under RFRA, even if it doesn’t require religious believers to violate a religious obligation or commit a sin. Congress was perfectly clear about this in the text of RFRA, which defines “religious exercise” to “include any exercise of religion, whether or not compelled by, or central to, a system of religious belief” (emphasis ours). There’s good reason to think that Congress was interpreting and protecting the First Amendment when it enacted that language. And the whole point was to block arguments like Blackman’s about first- and second-tier religious commitments.
It should go without saying that liberal Jews—like so many other liberal and progressive believers and nonbelievers—have deep and abiding religious and ethical obligations. But as a legal matter, they don’t have to stand on those obligations in order to show that the state has violated their religious freedom. If Jews sincerely believe that their religious values motivate their decisions about whether to abort or to help others receive the prenatal or emergency or mental health care they need, and if the government would penalize them for acting in accordance with those values, that is the end of the “substantial burden” inquiry for federal and state courts.
Over the last decade, the Supreme Court has been more solicitous of religious exemption claims than at any time in its history. It has taken a highly deferential approach to claims that sincere religious beliefs are substantially burdened. But if the court, following the logic proffered by religious liberty proponents like Blackman, rejects religious exemption claims in the abortion context by questioning the sincerity of non-Orthodox Jews and other minority believers, or if it denies that they are substantially burdened despite the sincerity of their claims, it will be pulling up the ladder that it has extended to Christian conservatives, who have claimed that their religion was burdened by, variously, cake baking, worship attendance limits, and facilitating the use of contraception.
To suggest that different adherents of other faiths should be denied that same solicitude by courts attacking their sincerity and accusing them, falsely, of “crying wolf” would be the most profound violation of what the Framers of the First Amendment sought to protect.
Correction, June 24, 2022: This article originally misstated that Josh Blackman is a professor at Southern Texas College of Law Houston. He is a professor at South Texas College of Law Houston. The article also misstated that the Florida law bans almost all pre-viability abortions. The bill bans abortion after 15 weeks.