Jurisprudence

Which Religion Counts in America

A brief in a case out of Indiana shows exactly how fundamentalist Christian beliefs trump everything else in the courts these days.

A protestor dressed in a red cape similar to those seen in the TV show The Handmaid's Tale hold up protest signs in favor of religious freedom on the steps of the Indiana statehouse.
A protester on the steps of the Indiana Statehouse on July 25. Jeremy Hogan/SOPA Images/LightRocket via Getty Images

When the Supreme Court handed down its decision in Dobbs v. Jackson, it overruled Roe v. Wade and allowed state legislatures to criminalize abortion care for the first time in half a century. What the court also did was hand off a fundamentally theological issue to elected state representatives. Around the country, states began to pass abortion bans that often featured explicitly religious claims about when human life begins. This led religious objectors to file lawsuits claiming that their own religious freedoms were being burdened by the states’ new laws.

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In Missouri, for instance, religious leaders are challenging a draconian state ban that was passed as lawmakers claimed, variously, that “life begins at conception and that is built into our legislative findings,” and that they were motivated “from the Biblical side of it.” A related lawsuit, on different constitutional grounds, was filed in Indiana, with plaintiffs including a group named Hoosier Jews for Choice and five women who challenged the abortion law under the state’s religious freedom statute arguing that it burdens their own religious beliefs.

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Indiana’s near-total ban was enacted last summer, immediately after Dobbs: S.E.A. 1 eliminated the licenses for all abortion clinics in the state, and allowed exceptions for abortions at hospitals only in cases of rape, incest, lethal fetal abnormalities, or a serious health risk to the mother. A state judge enjoined it this past December, finding that S.E.A. 1 “substantially burdens the religious exercise of the Plaintiffs.” This particular suit is fast becoming ground zero for reshaping American ideas about religious freedom and who gets to claim it and who gets to decide which religious adherents are “sincere.”

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Even before that December ruling, the Indiana abortion ban had already been enjoined by a state judge, on different grounds, and is pending at that state’s Supreme Court.
But the Hoosier Jews for Choice case squarely presents the issue of whether the religious freedom of dissenting religionists was being burdened in violation of Indiana’s Religious Freedom Restoration Act. The plaintiffs urge that the belief that life begins at conception, shared by Christian anti-abortion advocates, “is not a theological opinion shared by all religions or all religious persons.” Three of the five women plaintiffs in the lawsuit are Jewish.
One is Muslim, and the other woman describes herself as having nontheistic spiritual beliefs. Each plaintiff claims that her own faith is compromised by the near-total ban.

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Their brief explained that under Jewish law, broadly speaking, a fetus is only deemed a fully autonomous living person at birth, when they take their first breath. Islam does not believe in fetal ensoulment at conception, and some Muslim scholars argue the fetus “does not possess a soul until 120 days after conception.”

The Hoosiers suit was bumping along relatively smoothly in the Indiana court until January, when the Becket Fund for Religious Liberty filed an amicus brief defending the state ban. Before I get into the arguments of the brief, lets agree that courts regularly review claims of religious sincerity under the RFRA, sure, and more on that in a moment. But the brief filed here, not to put too fine a point on it, is astonishing in its frank and candid willingness to impugn the good faith of Jews and other religious minorities. Becket, which describes itself as a “a nonprofit, nonpartisan law firm that protects the free expression of all religious faiths” and has represented other religious minorities in some major cases, has also represented mostly Catholic and Christian litigants, from the religious business owners of Hobby Lobby to Wheaton College to the Little Sisters of the Poor. Becket also represents Yeshiva University in its quest to discriminate against its own LGBTQ club on the basis of religious freedom. But its filing in the Indiana abortion case goes rather further than any pro-religion group needs to go to make a point about who is lying about their faith.

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Under Indiana’s state RFRA, the government is barred from impeding someone’s religious free exercise unless there’s a compelling argument in favor of the state’s interest, and that state interest is being promoted in the least restrictive way possible. (The state’s RFRA was signed into law by then-Gov. Mike Pence in 2015.) The Becket brief could have challenged the Hoosier Jews for Choice on any number of grounds, such as arguing that the abortion ban properly furthers a state interest in fetal life, and that this interest was narrowly tailored. But they opted to argue that the religious objectors challenging the abortion restriction were religiously insincere. Let me just say that again. Or better yet, let the religious liberty advocates at Becket say it themselves:

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… the court below failed to consider evidence that Plaintiffs’ beliefs are insincere. Plaintiffs have not shown that their beliefs are truly held. Plaintiffs say they are religiously obligated to seek abortions up to the ninth month. But Indiana law has never conformed to their alleged religious belief that they “must terminate” any pregnancy that endangers their physical, mental, or emotional health to an unspecified degree based on a subjective self-assessment. Despite this discrepancy, Plaintiffs raised no religious objections to Indiana’s prior abortion regime, and several of them openly embrace it—even though it effectively banned abortions after 20 weeks. Why the sudden change of heart? There is a reasonable inference that the true reason Plaintiffs filed this lawsuit is because they disagree with the Supreme Court’s intervening decision in Dobbs—not because their alleged religious beliefs are “truly held.”

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If any of this sounds familiar to you, it’s because some “tentative thoughts” to this effect were advanced immediately after Dobbs was decided in June, by a law professor, Josh Blackman, suggesting that no non-Orthodox Jews could in fact claim to have any sincere religious obligations, because, as he explained at the time, Reform Jews “tend not to view as binding” Jewish law or halacha. Since they aren’t bound by Jewish law, the argument goes, they have no religious duties or obligations that could ground their objections to an abortion ban. And if they claim otherwise—if they attempt to explain their own religious convictions themselves—then they aren’t being sincere. Basically, the charge is that liberal and progressive Jews are faking their claims to take advantage of religious liberty protections.

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Prof. Micah Schwartzman and I responded to these tentative thoughts last summer, warning that under Blackman’s analysis, the same groups who were advocating for religious freedom for their own adherents would soon begin to limit it for other faiths. As we said back then, the implication of this argument is that since “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.”

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The Becket brief goes big on its claims that the religious liberty claims of the Indiana plaintiffs show “powerful evidence of insincerity.” The plaintiffs, says Becket, “assert, in a single, threadbare sentence, that ‘according to our Jewish beliefs, if a pregnant person’s health or wellbeing—physical, mental, or emotional—were endangered by a pregnancy, pregnancy-related condition, or fetal abnormality, they are directed to terminate the pregnancy.’ ”

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In other words: Christian advocacy group accuses Conservative and Reform Jews of lying about their own religious dogma. This will end well.

A pair of notable amicus briefs filed on behalf of the plaintiffs are forced to respond to these claims, and they each do a good job of explaining that which should never have needed to be said. The first, filed by historians who specialize in the study of religion, law, and reproductive health, takes aim at Becket’s claim of religious insincerity by showing in meticulous detail that the faith groups gathered in this lawsuit have a long and consistent record of viewing access to abortion or contraception as a matter of faith. Directly refuting the pernicious notion that only “pro-life” groups have sincerely held religious views on abortion, the historians detail the ways in which, since the early 20th century, religious Hoosiers “subscribed to and participated in the development of religious beliefs that sanctioned birth control and abortion. The struggle for birth control information and devices by people of faith underpinned the subsequent religious struggles for access to abortion.”

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The brief elaborates on the myriad ways in which Protestant and Jewish groups fought for access to birth control and reproduction; their faith leaders wrote and preached and organized around it, and this was the case across decades. “By the 1950s, Protestants and Jews took as axiomatic that birth control was essential to nurturing children’s spiritual and psychological development, maternal health, economic security, and the sanctity of family.” The historians point out that even Orthodox Jewish groups, including the Orthodox Union and Agudath Israel, which never went “so far as to support unfettered access to legal abortion–nonetheless indicated that ‘situations in which maternal health, rather than maternal life, are involved pose complex problems requiring rabbinic authority who will review the medical data and render advice in accordance with Jewish law.’ ” It’s only been in recent years that this position has shifted to align with anti-abortion forces claiming that under Jewish law, life also begins at conception. The brief, reciting the work of religious groups in Indiana over the past century, concludes that “to question the sincerity of the plaintiffs in this case is to ignore the historical record, in this state and beyond it, and to insult the profound commitments of countless people of faith.” It’s frankly embarrassing that historians need to weigh in to explain the history of religious advocacy for maternal health, birth control, and abortion to a court, but that is where we are.

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It’s even more embarrassing that a second amicus brief, this one filed by the National Council of Jewish Women and other interfaith religious groups, is forced to argue that the plaintiffs in this suit are not in fact lying about their religious commitments and values. The brief details the religious views and beliefs of the plaintiffs, and connects them to their behavior around abortion and pregnancy, concluding that “Plaintiffs and Hoosier Jews hold sincere religious beliefs about abortion. Plaintiffs and Hoosier Jews demonstrate consistency and clarity in describing their religious beliefs; consistent behavior aligned with those beliefs; sincere motive in bringing this lawsuit; appropriate timing; and credible demeanor. Plaintiffs’ and Hoosier Jews’ behavior is religiously motivated.”

For what it’s worth, in an unrelated lawsuit last summer, Becket issued a triumphal press release opining that “Courts can’t decide what it means to be Catholic—only the Church can do that. By keeping the judiciary out of religious identity, the Indiana Supreme Court just protected all religious institutions to be free from government interference in deciding their core religious values.” It actually beggars belief that Indiana Jews and Muslims are not to be offered the same solicitude to decide what it means to be a Muslim or a Jew.

We thus find ourselves, just months after Dobbsone of the most deeply theologically inflected decisions in recent history—listening to ostensibly faith-based litigation shops rehearsing arguments about the religious sincerity of adherents of different, minority faiths, and the history of that sincerity. This shift happened very quickly and almost imperceptibly, but it is happening nonetheless. It started with Hoosier Jews. It will not end there.

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