The Volokh Conspiracy
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Some Less-Tentative Thoughts On Abortion And Religious Liberty, One Year Later
On June 20, 2022, I published a post titled Some Tentative Thoughts On The Jewish Claim To A "Religious Abortion." I started thinking about that post several weeks earlier. I only published it when I did to get ahead of the imminent Dobbs decision, which eventually was released on June 24 (a few days earlier than I expected). I spent as much as I did on the post because I knew it would be controversial. I was writing on two of the most hotly-contested topics in our polity, abortion and religious liberty, against the backdrop of a long-simmering divide within the Jewish community. I knew that my post would stir up a debate in my own circles–there would be tweets from law professors, essays on Slate, and maybe a few footnotes in post-Dobbs law review articles. But the reaction was far greater. The post went viral, and global. Beyond the usual suspects, my piece was discussed in Jewish publications in the United States and in Israel. And it was referenced in mainstream media sources.
In the past, some of my writings had triggered national conversations, such as my work during the Trump impeachments, but those reactions were seldom about me. At most, I was called a "partisan hack" or some such charge. But here, the reactions to my writing were quite personal. Even the local Jewish newspaper in Houston (yes, we have one) carried an editorial about my piece. People from a local synagogue invited me to attend a program they were hosting on the topic. (I wasn't able to make it, but I asked them to send me a recording). The rabbi from my parents' temple in New York asked me about it. People attacked me, in particular, as a Jew being critical of other Jews. In the lingo, chilul hashem, which is often used to describe a Jew defaming his own people. Or, to use the title of a recent book, a Bad Jew.
My usual policy is to respond to critics on my own terms, and my own timetable. I learned this lesson well during the Hamilton documents imbroglio of 2017. Law professors and others accused Tillman and me of doing something wrong, and demanded a response immediately. We took our time, prepared our response methodically, and–in my view at least–our strategy was vindicated. This lesson is all-too-important in our Twitter-crazed culture, where people make wild accusations, but seldom follow-up if they were mistaken. I am fairly confident that the overwhelming majority of people who criticized my piece did not actually read it. At most, they read a piece in Slate, or perhaps read a piece somewhere else that paraphrased what was in Slate, or most likely, read a few negative tweets, and went from there. It's like making a photocopy of a photocopy of a photocopy–something is lost with each successive reproduction. I don't fault people for not taking the time to read my lengthy post, which was filled with legal jargon and professorial nuances. That sort of writing does not translate well for wide-spread consumption. And I knew that fact going in, which is why I wrote a 1,900 word blog post, rather than a snappy op-ed.
I also do not fault the people who wrote on Slate and other sites about my piece. They responded in short order, and tried to summarize my fairly nuanced idea into a package that was readily accessible.
Indeed–and this part may surprise you–I am grateful that so many people wrote about my piece, even critically. I well know my place in our society. My views are never going to be popular with the elite actors. These prominent voices are not going to change their views based on something I write. Rather my goal, as always, is to stimulate discourse and, if I'm successful, change the grounds of debate. Call it shifting the Overton Window if you will, or to use another formulation, moving ideas from off the wall to on the wall. But consistently, my writings expand the outer bounds of what ideas are in the mainstream. The old saw that all press is good press holds true. The more people criticize me, the larger my platform becomes. I sincerely thank them for the attention, and amplifying my voice. Also, in a perverse way, I am grateful that so many people have begun to take religious liberty seriously. Will that sentiment carry over to cases like Hobby Lobby or Masterpiece Cakeshop? Probably not. The Green Family and Jack Phillips do not have the right religious views. But at least this new-found appreciation of RFRA vindicates those who have defended the law for decades.
After the initial flurry of writings about my post died down in the wake of Dobbs, several law professors wrote full-length treatments of my short, tentative post. In the NYU Law Review, David Schraub wrote Liberal Jews and Religious Liberty. In the Iowa Law Review, Richard Schragger and Micah Schwartzman wrote Religious Freedom and Abortion. There are others. I also co-authored a law review article with Howie Slugh and Tal Fortgang in the Texas Review of Law & Politics, titled Abortion and Religious Liberty. This articlec was based on an amicus brief the Jewish Coalition for Religious Liberty filed in the Indiana Court of Appeals.
I don't intend to do a line-by-line parsing of these other articles, as these articles did with my "tentative" thoughts. Rather, I want to address, at a high-level, what was the most common misperception of my work: that reform/liberal/progressive Jews cannot, as a categorical rule, state claims under the Free Exercise clause. I never, ever made that claim. I didn't think that was true last year, and I do not think that is true today. I now see that people could have drawn that inference from my post. (David Schraub helped me to see that point). And I'll take the blame here. My post was titled, "Tentative Thoughts," and I meant it. I wasn't intending to make a definitive, conclusive position.
Let me illustrate my position with a far less contentious hypothetical, taken from the Obamacare litigation. Imagine that a state seeks to promote pig farmers, and mandates that everyone must purchase a quantity of pork. People are not required to eat pork, just purchase it. Who could raise a free exercise challenge to this law? (Let's put aside any Due Process issues to make the issue easier).
Jewish people of all stripes abstain from eating pork. One category of Jews avoids pork as part of the comprehensive dietary rules, known as the rules of Kosher. They likewise only eat meat slaughtered in a ritual fashion, avoid mixing meat and dairy, do not eat shellfish, and so on. These Jews deem the prohibition on eating pork as a binding aspect of their faith.
A second category of Jews do not follow all, or most of the strict dietary rules, and do not deem the rules of Kosher as "binding." Yet, they still avoid eating non-kosher animals, such as pigs and various shellfish for some religious reason. Perhaps they deem the rules as advisory, or precatory, or something else. (I personally fall in this category.)
A third category of Jews do not follow any of the dietary rules, reject that these rules are binding, or even precatory, and routinely eat non-kosher animals. Or they abjure pork for non-religious reasons; for example, they are vegetarian, and do not eat any animals, or think that the treatment of pigs in slaughterhouses is inhumane.
Of course, it is a mistake to group any person into finely-delineated categories. Not everyone perfectly lines up in these groups, but I hope the categories are helpful to illustrate my hypothetical.
Which of these three categories of Jews could state a free exercise claim? The first category of Jews would have the easiest time making the claim, as the prohibition of eating pork is one of many religious dietary rules they follow. There is no doubt their objection is religious in nature, and their broad compliance with the dietary laws would demonstrate the sincerity of the claim.
The second category of Jews could likewise make the claim. I think they could establish their objection is religious in nature, even if they do not treat the laws of kosher as binding. Rather, they would need to show that their rejection of pork is due to some religious reason, even advisory or precatory. I don't think the courts could probe into the contours of that belief system. Courts can only determine if the person's beliefs are sincere. And if the person had long abjured pork, as part of their religious belief, then I think sincerity can be established.
The third category of Jews would have the hardest time. Their decision to avoid pork is in no sense due to religious beliefs–whether deemed as mandatory or precatory. And they routinely took the precise action that they now object to–eating pork. Of course a person is not locked into a particular belief system in perpetuity. People can find their faith at any time. But a new-found objection could give rise to a sincerity-based challenge. Still, if the person in the third category can demonstrate his objection is in fact religious in nature, and the claim is sincere, then a free exercise claim could go forward.
The pork hypothetical differs from the abortion example in one important regard. A person can credibly claim to abstain from pork for an extended period of time, which demonstrates that the practice is both religious in nature, and the belief is sincere. But a similar showing is difficult to make for a religious claim to abortion. How many women can credibly show that they have previously had an abortion as part of their religious exercise? Indeed, prior to Dobbs, while Roe and Casey prevailed, there would have been little reason for most women to even cite a religious justification for the procedure.
A woman might claim to have always believed that her religion required, or at least recommended an abortion in certain circumstances. But a mere belief, divorced from action based on that belief–as religious liberty litigators know all too well–is a weaker basis for a court-granted exemption. To show that this belief is religious in nature, and is sincere, the woman would have to demonstrate more broadly her commitment to Judaism. That can be done through a host of factors, including ties to a religious community, practicing of certain religious tenets (whether as mandatory or precatory), and so on. This burden can be satisfied, but I think it would be harder for a woman who does not belong to a Jewish community, and cannot show other tangible ways in which her faith has impacted her behavior, to provide some indicia that the professed religious belief is sincere. That burden would not turn on whether she believed Jewish law was binding in any formal sense.
Let me state my conclusion simply: reform or progressive or liberal Jews–however they are denominated–can state sincere free exercise claims for religious freedom, regardless of whether they deem Jewish law as binding or not. I failed to sufficiently articulate this point in my "tentative thoughts" post.