Pluralistic: The "religious liberty" angle for overturning the overturning of Dobbs (11 July 2023)

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Moses parting the Red Sea. On the seabed is revealed a Planned Parenthood clinic.

The "religious liberty" angle for overturning the overturning of Dobbs (permalink)

Frank Wilhoit's definition of "conservativism" remains a classic:

There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.

Conservativism is, in other words, the opposite of the rule of law, which is the idea that the law applies equally to all. Many of America's most predictably weird moments live in the tension between the rule of law and the conservative's demand to be protected – but not bound – by the law.

Think of the Republican women of Florida whose full-throated support for the perfomatively cruel and bigoted policies of Ron Desantis turned to howls of outrage when the governor signed a law "overhauling alimony" (for "overhauling," read "eliminating"):

This is real leopards-eating-people's-faces-party stuff, and it's the only source of mirth in an otherwise grim situation.

But out of all the culture-war bullshit backfires, none is so sweet and delicious as the religious liberty self-own. You see, under the rule of law, if some special consideration is owed to a group due to religious liberty, that means all religions. Of course, Wilhoit-drunk conservatives imagine that "religious liberty" is a synonym for Christian liberty, and that other groups will never demand the same carve outs.

Remember when Louisiana decided spend tax dollars to fund "religious" schools under a charter school program, only to discover – to their Islamaphobic horror – that this would allow Muslim schools to get public subsidies, too?

(They could have tried the Quebec gambit, where hijabs and yarmulkes are classed as "religious" and therefore banned for public servants and publicly owned premises, while crosses are treated as "cultural" and therefore exempted – that's some primo Wilhoitism right there)

The Satanic Temple has perfected the art of hoisting religious liberty on its own petard. Are you a state lawmaker hoping to put a giant Ten Commandments on the statehouse lawn? Go ahead, have some religious liberty – just don't be surprised when the Satanic Temple shows up to put a giant statue of Baphomet next to it:

Wanna put a Christmas tree in the state capitol building? Sure, but there's gonna be a Satanic winter festival display right next to it:

And now we come to Dobbs, and the cowardly, illegitimate Supreme Court's cowardly, illegitimate overturning of Roe v Wade, a move that was immediately followed by "red" states implementing total, or near-total bans on abortion:

These same states are hotbeds of "religious liberty" nonsense. In about a dozen of these states, Jews, Christians, and Satanists are filing "religious liberty" challenges to the abortion ban. In Indiana, the Hoosier Jews For Choice have joined with other religious groups in a class action, to argue that the "religious freedom" law that Mike Pence signed as governor protects their right to an abortion:

Their case builds on precedents from the covid lockdowns, like decisions that said that if secular exceptions to lockdown rules or vaccine mandates existed, then states had to also allow religious exemptions. That opens the door for religious exemptions to abortion bans – if there's a secular rule that permits abortion in the instance of incest or rape, then faith-based exceptions must be permitted, too.

Some of the challenges to abortion rules seek to carve out religious exemptions, but others seek to overturn the abortion rules altogether, because the lawmakers who passed them explicitly justified them in the name of fusing Christian "values" with secular law, a First Amendment no-no.

As Rabbi James Bennett told Politico's Alice Ollstein: "They’re entitled to their interpretation of when life begins, but they’re not entitled to have the exclusive one."

In Florida, a group of Jewish, Buddhist, Episcopalian, Universalists and United Church clerics are challenging the "aiding and abetting" law because it restricts the things they can say from the pulpit – a classic religious liberty gambit.

Kentucky's challenge comes from three Jewish women whose faith holds that life begins "with the first breath." Lead plaintiff Lisa Sobel described how Kentucky's law bars her from seeking IVF treatment, because she could face criminal charges for "discarding non-viable embryos" created during the process.

Then there's the Satanic Temple, in court in Texas, Idaho and Indiana. The Satanists say that abortion is a religious ritual, and argue that the state can't limit their access to it.

These challenges all rest on state religious liberty laws. What will happen when some or all of these reach the Supreme Court? It's a risky gambit. This is the court that upheld Trump's Muslim ban and the right of a Christian baker to refuse to bake a wedding cake for a same-sex couple. It's a court that loves Wilhoit's "in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect."

It's a court that's so Wilhoit-drunk, it's willing to grant religious liberty to bigots who worry about imaginary same-sex couples:

But in the meantime, the bigots and religious maniacs who want to preserve "religious liberty" while banning abortion are walking a fine line. The Becket Fund, which funded the Hobby Lobby case (establishing that religious maniacs can deny health care to their employees if their imaginary friends object), has filed a brief in one case arguing that the religious convictions of people arguing for a right to abortion aren't really sincere in their beliefs:

This is quite a line for Becket to have crossed – religious liberty trufans hate it when courts demand that people seeking religious exemptions prove that their beliefs are sincerely held.

Not only is Becket throwing its opposition to "sincerely held belief" tests under the bus, they're doing so for nothing. Jewish religious texts clearly state that life begins at the first breath, and that the life of a pregnant person takes precedence over the life of the fetus in their uterus.

The kicker in Ollstein's great article comes in the last paragraph, delivered by Columbia Law's Elizabeth Reiner Platt, who runs the Law, Rights, and Religion Project:

The idea of reproductive rights as a religious liberty issue is absolutely not something that came from lawyers. It’s how faith communities themselves have been talking about their approach to reproductive rights for literally decades.

(Image Nina Paley, CC0 1.0; Kristina D.C. Hoeppner, CC BY-SA 2.0; modified)

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This day in history (permalink)

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Colophon (permalink)

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