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On the “free exercise for religions whose views are consistent with the policy preferences of the Republican Party” argument

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A Florida synagogue was sued to see an exemption from Florida’s new abortion ban violates the state’s constitutional protections of religious liberty. Given the expansive views of religious liberty being advanced by the contemporary Supreme Court, this is a serious claim. Hence, the felt need among the Republican legal world to develop a pretext for why exceptions claimed from laws conservatives like don’t count. Josh Blackman stepped up to the plate with a quite revolting blog about how the religious views of liberal Jews are inherently insincere and hence unworthy of constitutional protection.

Dahlia Lithwick and Micah Schwartzman give this ad hoc rationalization the treatment it merits:

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.

Blackman’s argument is of course both absurd and offensive, but something like it is very likely to become Supreme Court doctrine, because the dismantling of Employment Division v. Smith by the new generation of reactionary judges was never intended to protect claims brought by liberals.

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