Earlier this month, an Indiana appeals court delivered a great victory to two causes that often find themselves in opposition: reproductive freedom and religious freedom. A group of women successfully argued that the state of Indianaâs ban on abortion, enacted in the immediate wake of Dobbs, violated their rights to religious freedom. The stateâs Religious Freedom Restoration Act, or RFRAâsigned into law, not incidentally, in 2015, following Obergefell and the national legalization of same-sex marriageâguarantees that sincere religious individuals can be exempt from government actions that âsubstantially burdenâ their exercise of religion.
In this case, unlike many other religious freedom controversies, the claimantsâ beliefs and practices involve bodily autonomy, the beginning of life at birth, and the precedence of a pregnant patientâs physical and emotional health over that of the potential life. This issue is far from settled, though. The decision will likely be appealed, and this case is one of many to come. Now, and in the coming years, the religious right to abortion will be a pivotal political issue. As more states criminalize reproductive health care, and abortion specifically, religious freedom has become a potentially powerful tool, a âsleeper strategy,â in the fight for reproductive freedom.
For the past decade, many of the most prominent and successful religious freedom claimants have been conservative Christians. Judges and lawyers, even the liberals among them, have had no trouble understanding these claimants as obviously sincere and paradigmatically religious. Powerful right-wing organizations such as Alliance Defending Freedom and First Liberty Institute have leveraged religious freedom into expansive protections for their claimants, carving out space for them to flout antidiscrimination law, reject vaccines, and avoid âcomplicityâ in practices with which they disagree. From liberal and left perspectives, these cases already have caused great societal harm, with more of the same likely on the way. To allow a sincere believer to break laws with such ease could be, as the Supreme Court feared in 1879, to make âthe professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself.â
Whether religious freedom should function this way is one question. But there are other pertinent questions about how to respond to the current moment. Since religious freedom is often a right-wing tool for oppression and discrimination, should liberals and leftists be fighting to beat it back, or does it make more sense to embrace this doctrine and use it to further their own ends? Is it possible to do both?
Progressive cases for the free exercise of religion could be understood as a reversal to the decade-long rightward lurch of religious freedom. Or they could extend and abet it, exceptions that help legitimate the rule. On the one hand, showing that abortion is a matter of religious conscience demonstrates that religious belief is not just for the right. If progressives leave religious freedom to conservatives, they end up tacitly agreeing that only conservative Christians are truly and sincerely religious and that other people are not. Using free exercise law to (attempt to) protect the right to abortion access, to operate safe injection sites, or to give aid to migrants at the border is to argue credibly that these believers are, in fact, both sincere and religious. There is no reason that sincere believers have to be conservatives. And ultimately, contesting their special access to free exercise protections could undermine the whole system.
On the other hand, selective progressive inclusion will not stem the tide of right-wing free exercise lawsuits. Indeed, it might even give them cover, offering evidence that religious freedom is not just a right-wing strategy. Conservatives maintain a well-organized legal network, not to mention control of the courts. They are unlikely to start losing just because others also win sometimes.
The Indiana decision is notable for its unambiguous acknowledgment of the religiosity and sincerity of the plaintiffsâ beliefs. While conservative Christian beliefs have generally been assumed to be sincere and religious, especially when they are focused on sex and gender issues, progressives have received more scrutiny. This discrepancy exposes the normative assumptions embedded in public understandings of religion, even among judges and lawyers. The courtâs rejection of these assumptions could mark an important shift.
The stateâs primary argument was that the plaintiffsâ objections to the abortion ban were insincere. Becketâa law firm whose motto is âReligious Liberty for All,â and which represents some claimants who are neither conservative nor Christianâfiled an amicus brief on the side of the state, arguing that there is âpowerful evidence that [the] Plaintiffâs beliefs are not sincere.â They alleged that the plaintiffs âthink RFRA will serve as a âcloakâ for their non-religious objectionsâ to the abortion ban.
These insinuations express what legal scholar Elizabeth Sepper has called âthe worry about lying women.â Sepper shows how arguments that such believers are really political, not religious, âalternate between painting women as unscrupulous political actors and describing them as pawns of the abortion rights movement.â As I have argued elsewhere, the sincere religious believer is often imagined against her opposites, the credulous fool and duplicitous knave. The former does not understand her own beliefs well enough to hold them sincerely; the latter does not believe what she says, and she dupes others along the way. When Becket and others accuse these women of lying, they imply that they knavishly mask (or âcloakâ) their true intentions, while also being duped by political actors above them who are really pulling the strings. Either way, they are not eligible to play the role of the sincere believer.
A common objection to progressive claims is that the beliefs are not just insincere but fundamentally not religious. Speaking to Politico last year about the abortion challenges, Becket attorney Lori Windham said, âI think these are much more like political stunts than they are viable court cases.⊠You can have a sincere political belief or policy preference, and it can be passionate and deeply held, but that doesnât make it a religious practice.â
The precedents for many contemporary free exercise issues can be traced to conscientious objection cases. In the 1960s and early 1970s, courts counted huge numbers of individual objectors as religious, as long as they could, in keeping with the draft act, explain how their beliefs were religious and not âpolitical, sociological, or philosophical views or a merely personal moral code.â This framework implied that religious beliefs had to be disconnected somehow from real-world concerns, abstract concepts not related, or at least not responding, to particular political situations. Politically involved objectors, especially those who were Black and/or had connections to civil rights organizations, were disproportionately interpreted as political actors and, therefore, not religious.
A rigid religious/political binary is untenable. The state of Indiana seemed to suggest that any action or belief that might also be secular or political cannot then be religious. But this makes no sense: As the court recognized, many practices stem from religious beliefs but could also stem from nonreligious ones. You could, for example, reject a vaccine because you believe it was created with tissue from aborted fetuses, or it contains microchips used to control you, or the Bible tells you to keep your body pure. Which of these reasons is religious, and which is political? Whatever the case, it is clear that someone could do a particular activityâfeeding the poor, to take a different exampleâfor a religious reason or a political one, or some combination of the two. Trying to isolate something called âreligionâ from other aspects of life is an incoherent project from the start. And yet, religious freedom rests on such an impossibility.
The best arguments liberals and leftists can make, in my view, do not hinge on demonstrating that conservatives are actually the political-not-religious ones. That is a trap. Rather, they ought to argue that if those conservatives are religious, then these liberals are as well. They should point out inconsistencies. Here is one example. Conservative legal scholars such as Josh Blackman have argued (or offered âtentative thoughtsâ) that liberal Jews are insufficiently religious, as their doctrines lack seriousness because they are not âbindingâ or required by religious authorities. This is basically what Becket argued in its brief, saying that the Jewish plaintiffs had not specified just how much ââphysical, mental, or emotionalâ impairmentâ they would suffer from an unwanted pregnancy, and âtestified that [abortion] is âultimately an individual decision.ââ
An individual decision is somehow less religious or less sincere? The premise of that argument, as legal scholars Micah Schwartzman and Dahlia Lithwick explained in response to Blackmanâs piece, is âabsolutely wrong.â A tentpole concept of contemporary free exercise law is that sincere individuals, even those with idiosyncratic beliefs, are guaranteed the right to free exercise. Consider Coach Joe Kennedy, the football coach whose free exercise of religion (praying on the field while serving as a public school employee) was important enough to the Supreme Court that it decided to protect it, despite establishment clause concerns. Kennedyâs own beliefs were unsystematic, far from doctrinaire, and, one could argue, theologically unserious. But that does not matter. My point is not that Kennedy is not a sincere religious believer. It is that it is difficult to argue in good faith that he is but the Indiana plaintiffs are not.
The state of Indiana, along with Becket and other allies, does not make a serious constitutional argument. But it does take a view of religion that rings true to plenty of Americans. Some of those Americans might be judges. One reason that people might not understand liberal Jews, or progressives in general, to be really religious is that they do not know very much about progressive religions. For this reason, a group of historians filed an amicus brief explaining the history of religious belief and activity in support of abortion rights. They attempt to correct the record, showing that progressive religions do in fact exist, have a long history, and are not convenient âcloaksâ for political activity. If judges do not know that, then they lack important historical information and context.
The history of American religion is complex and diverse, and few people know much about it. As Sepper notes, âWe rarely hear from religious people who choose abortion. Less often still do we encounter religion as a motivating factor in their decisions.â These are stories that need to be told and heard. Learning these histories or understanding Jewish theology will not change everyoneâs mind. People can still make their arguments, defining religion or politics as they will, but ignorance should not be an excuse. And over time, a better understanding of American religion in all its diversity could lead to more respect, rights, and protections for religious minorities. However, bigots are not always ignorant. Often, they know exactly what they are doing and who their targets are.
Given the current composition of the courts and recent politics of religious freedom, is free exercise litigation a viable path toward justice and progress? Wonât it just extend the reach of bad laws that are so often used for ill? And what about nonreligious people? Our dignity, self-determination, bodily autonomy, and so much else should not depend on whether we can convincingly play the role of the sincere religious believer. Carving out exceptions to a rule generally does not help dismantle the rule. But what if it is true that, as legal scholar Xiao Wang has put it, âreligious free exercise today is our most powerful and effective means of civil disobedienceâ? First, it shouldnât be. Second, if it is, then it should be used, as much as possible, toward just ends. In a better world, we wouldnât need religious freedom. In this one, maybe we do.
