The Circle Starts to Close: The Religious Freedom Restoration Act, Abortion, the Catholic Bishops, and the Satanic Temple

Updated:
Posted in: Reproductive Law

When the Religious Freedom Restoration Act (“RFRA”) was first being considered over twenty years ago, the Catholic bishops did not jump in to support it with both feet. They were concerned it would be invoked by some believers to create an avenue to obtain abortion on demand.

The General Counsel to the United States Catholic Conference at the time, Mark Chopko, testified before the House Committee on the Judiciary a year before RFRA was first enacted in 1993 that the bishops were concerned that RFRA might “be used to promote access to abortion.” He predicted that abortion rights claims would be made under RFRA and worried aloud: “Even if only a few claims to obtain abortions do succeed under [RFRA], what restraint will remain on district and state attorneys to deny abortions to others who offer affidavits conforming their claims, beliefs, and motions to the prior successful claims? These claims will be numerous and far-reaching in their impact.”

For the bishops at the time, the “lives of the unborn [were] too important to put at risk under [RFRA].” In other words, regardless of all the other religious agendas to defeat certain laws, like fair housing laws, the bishops were intent on opposing RFRA unless it contained an exception for the abortion laws. Before the Senate Subcommittee on the Judiciary, he added that he was concerned “whether RFRA can be used to upset even moderate abortion regulation.”

Obviously, they did not succeed on this score. No abortion law exception was inserted into RFRA. Nor did the bishops wait long following RFRA’s enactment to invoke its advantages when it suited its interests. It was the Catholic bishop of San Antonio, Texas, who brought the early RFRA lawsuit to overcome the historic preservation laws of Boerne, Texas, that eventually rendered it unconstitutional in Boerne v. [Archbishop] Flores.

Their enthusiasm for RFRA is at an all-time high now as the bishops and Catholic institutions generally are sinking who-knows-how-much money into lawsuits invoking RFRA to prevent all of their employees and students from receiving cost-free contraception coverage.

The bishops may now be ruing the day they lost the legislative battle to keep abortion laws from being subject to RFRA, and the evangelicals, who were on board RFRA from day one, may now wonder what they have wrought with RFRA. Their problem is that RFRA does not and cannot (consistent with the Constitution) provide its extreme standard solely to some religious believers and not others.

Enter the Satanic Temple

The Satanic Temple is famous for its offer to install a statue of Satan to join the Ten Commandments monument on the Oklahoma state house grounds. The ACLU is litigating the Ten Commandments monument, though, which put the application for Satan on hold, but a sculptor is at work nonetheless.

Now it has entered the picture following Burwell v. Hobby Lobby, arguing state informed consent restrictions on abortion—which can include misleading health information in addition to advocating for the woman to make any other choice—violate its religious beliefs. As I have explained elsewhere, it was inevitable that believers could and would raise arguments under RFRA that undermine the agendas of many of those behind it. Now it is worth examining closely how the evangelical Green family of Hobby Lobby paved the way for the Satanic Temple.

Hobby Lobby and the Satanic Temple on Abortion

The RFRA doctrine raises four issues: (1) is the entity protected by RFRA; (2) is the believer sincere; (3) does the law impose a substantial burden on the believer; and (4) can the government prove that the law serves a compelling interest (5) in the least restrictive means?

There is a federal RFRA applicable to federal law and the District of Columbia, which was at play in Hobby Lobby, and some states also have state RFRAs, that have similar features.  The federal RFRA could be invoked by pro-choice believers against the Partial-Birth Abortion Act, which was based on unreliable medical science and disregarded women’s health, as Justice Ginsburg’s dissent in Gonzales v. Carhart established.   State informed consent laws could also be attacked through a state RFRA.   The following focuses on the Satanic Temple’s reference to informed consent laws, but the reasoning applies equally well to the Partial-birth Abortion Act and other federal laws that burden access to abortion as well.

Is the Satanic Temple protected by RFRA? Check. In Hobby Lobby, the Supreme Court held that a for-profit, nonreligious corporation could assert rights under RFRA. That issue is does not arise here, because the Satanic Temple is a religious organization clearly intended to be covered by RFRA.

Is the Satanic Temple sincere about its belief against coercive informed consent laws? Check. The next issue that could arise in a RFRA case is whether the believer is sincere. There were and are many reasons to question the sincerity of the Greens, who covered contraception before the Affordable Care Act mandated it and whose company is heavily invested in the companies that make the contraceptives to which they object, but the federal government failed in Hobby Lobby to pursue this legitimate tack, likely for political reasons. In any event, there can be no question that the Satanic Temple is sincere about its beliefs regarding the coercive informed consent abortion laws to which it objects.

Here are their beliefs relevant to abortion: “The Satanic Temple believes that the body is inviolable—subject to one’s own will alone.” Further, “we strive to make all decisions regarding personal health based on the best scientific understanding of the world, regardless of the religious or political beliefs of others.” These beliefs were not concocted recently, and there is no evidence of hypocrisy.

Do the coercive informed consent abortion laws substantially burden these beliefs? Check, after Hobby Lobby. Before Hobby Lobby, this would have been harder for the Satanic Temple, because “substantial” meant substantial, and it had never meant that a believer could point to the practices of others to prove the substantial burden on them. Now, “substantial” can also mean attenuated. Hobby Lobby’s “substantial burden” was that some dollars from its billions in annual revenues would pay for some types of contraception that their employees might use. In other words, the burden arose from their fungible funds entering a stream of fungible healthcare funds and then being used by some of their female employees in ways they will never know.

A Satanic Temple adherent believes that people have an “inviolable” right to control their own bodies and that medical care should be delivered on the basis of the best medical science and not others’ “religious or political” beliefs. When a coercive informed consent law is contrary to the wishes of the woman demanding an abortion or includes untrue medical statements, e.g., abortion causes breast cancer or that there is a “post-abortion syndrome,” these beliefs are burdened. They actually have a better argument on “substantial burden” than did Hobby Lobby, because the burden is direct.

Can the government show that a coercive informed consent abortion law serves a compelling interest? In Hobby Lobby, the Court did not even bother to consider this issue, but rather simply assumed it. So we will assume it here. What is the interest we are assuming is compelling? Let’s say it is providing as much information—true or false—as possible so the woman will consider all of the options before obtaining the early term abortion that is her right under Roe v. Wade and Planned Parenthood v. Casey.

Can the government show that the coercive informed consent abortion law is the least restrictive means to serve that compelling interest? The Hobby Lobby majority reasoned that if there was any way the government could fill the gap by other means, its chosen way was not the “least” restrictive. How else could the government fulfill its goal of providing full information without substantially burdening the Satanic Temple believer? That’s easy! Delete all of the medically unsound verbiage from the informed consent materials and let the woman make her own decision about obtaining an abortion. Better yet, since the majority went out on a limb in Hobby Lobby for the insubstantially burdened believer there, let’s throw in here that the government should also have to pay for the Satanic Temple believer’s abortion, because the faith requires no burdens on the woman’s decision whether to have an abortion.

The Satanic Temple wins, and who loses? All of the evangelicals and Catholic bishops who lobbied like crazy to put such coercive and insulting conditions on women’s choices over their own bodies in the first place. The bishops were correct in 1992: RFRA cuts both ways. It turns our laws into legal Swiss cheese.

The Need for Protestants and Jews and Others to Flip the Priorities: Integrity Over Image

The truth is that many Protestants and Jews also believe that women should be able to make their own choices about abortion and contraception and that many current abortion restrictions are immoral, insulting, and draconian. They view women in a non-patriarchal and respectful way, and they believe that medical science can legitimately be a limit on abortion, but not mean-spirited politics or religion. In short, they should get on the Satanic Temple train.

Of course, it is unlikely they will, because they may shy away from the optics of joining forces with a religious group that is, well, a bunch of Satanists. Notice that the Satanic groups were not included in the Coalition for the Free Exercise of Religion to whom we owe a debt of gratitude for inflicting RFRA on the United States. Nor were a wide range of other groups that aren’t as pleasing to the public eye, either. Why? Because RFRA was sold as a benign law and religion has been sold for decades in the United States as a benign force. Both can be, but not by necessity.

It would be so refreshing for mainstream Protestant and Jewish organizations and believers to stand up and say, yes, we will join forces with whoever will stand for women’s right to choose, even if it is the Satanic Temple. Time for integrity to trump image.

Just because women and the United States as a whole lost the Hobby Lobby battle does not mean they must lose the war.

  • I’m confused. The informed-consent restrictions at issue here are imposed by state law, not federal law, correct? The Supreme Court in Boerne ruled that the RFRA is unconstitutional as it is applied to the states. Nothing in the Court’s decision in Hobby Lobby changed this. So, wouldn’t the tougher free-exercise standard adopted by the Court, thanks to Justice Scalia, in the Smith II decision — and not the RFRA standard — apply here?

    • Joe Paulson

      There are state analogues … if a state accepted HL’s logic, it very well can apply to them too.

      Also, there probably are local federal abortion laws somewhere (Puerto Rico? Guam? military bases etc.) where this might arise.

  • Joe Paulson

    CUTTER v. WILKINSON concerns the Religious Land Use and Institutionalized Persons Act … Satanism was one of the faiths among the plaintiffs there.

  • Roosevelt32

    I have not belonged to any organized religion since I left the Lutheran church as a teenager – but the Satanic Temple is looking really good. I just went an read their 7 tenants and they won me over with the very first –
    One should strive to act with compassion and empathy towards all creatures in accordance with reason.

  • fredx2

    Wouldn’t it be better to have a legitimate scholar present these articles, rather than an obvious activist type professor?

    The rationale exhibited here is kind of sad. No effort to be intellectually honest, just more obvious activism.

    But if that is what Justia is, then that is what it is. Your credibility, of course, sinks to the bottom.

    For Marci Hamilton to pretend that she represents all women everywhere is just kind of…weird. Typical over the top activism type stuff.

    • nop666

      You’re a sad, impotent little troll, son.

  • Victor Grunden

    Religious practices that do harm to other people have never been allowed. Most laws passed by Congress are done so in the context of past practices. Snake worshiping is illegal in most states. Ditto polygamy, incest and child molestation. Christian Scientist have been prosecuted for failing to provide medical care to dependents. There is a rising Moslem and Hindu population in this country that believes wife beating is necessary at times. The list of practices RFRA was not intended to protect is long. Comparing Satanic principles and practices and Judeo-Christian principles and practices within our American system of government is most foolhardy and a waste of resources. U.S. laws can be traced to the Ten Commandments. If the Satanist wish a monument, their guiding Commandments should be placed alongside the Ten Commandments and let the accused decide by which set of laws they would like to be tried and punished.

    • nop666

      “U.S. laws can be traced to the Ten Commandments.”
      LOL. Who on earth told you this lie?

      • Victor Grunden

        Many people from different walks of life. After the Ten Commandments in Genesis, there are rules for living in Chronicles. Aristotle, Socrates and even the Roman pagan laws are all quite similar. Every Christmas we have to tolerate people upset about Nativity scenes on the courthouse lawn, town square or school, yet putting a statue of Satan using the RFRA is not a state endorsement of Satanism. Neither is a state endorsement of religious beliefs, but under current law the atheist, agnostics and others have established that precedent. The Ten Commandments sets forth the principles upon which America’s laws were founded. If you are a Satanist as your 666 implies, then you are familiar with the Satanic Bible and it’s rules for living. Instead of a statue, Satanic principles should be placed alongside the Ten Commandments then jurors could judge those that commit heinous acts in an enlightened manner. For what it’s worth, in ancient Roman time when Revelations was written, 666 was symbolized by three t’s that looked like crosses. Today three crosses represent the Trinity and/or the Crucifixion, not the mark of the beast. The fallen angel Lucifer is referred to as Satan, the Devil, the Great Deceiver, Serpent, Tempter, but I don’t think anywhere was he referred to as The Beast. So, 666 as a sign of Satan is folklore. So much for symbols. They only represent what an individual thinks they mean and no State can do anything about that.

        • nop666

          In other words, you admit that there’s zero evidence for your claim.

          • Victor Grunden

            Any number of historical documents from the founding of America provide ample evidence. When the American Constitution, the foundation of the American legal system, was written, the Founders said it was written for a moral and just society. Without morals the Constitution is worthless, they said. The Ten Commandments are about a moral and just society.

          • The Ten Commandments (Exodus 20:2-17)

            1 “I am the Lord your God, who brought you out of the land of Egypt, out of the house of bondage. You shall have no other gods before Me.”

            We began as a colony, sailing from England… Our founders enshrined their belief in the natural law and our individual freedom. We are not required to believe in any god, though we are free to embrace one or many. Ahhh, freedom. This does not seem reconcilable with our Constitution and the First Amendment thereto.

            2 “You shall not make for yourself a carved image, or any likeness of anything that is in heaven above, or that is
            in the earth beneath, or that is in the water under the earth; you shall not bow down to them nor serve them. For I, the Lord your God, am a jealous God, visiting the iniquity of the fathers on the children to the third and fourth generations of those who hate Me, but showing mercy to thousands, to those who love Me and keep My Commandments.”

            Christians have gone hog-wild with images of Jesus and crosses, and worship them, wear them, hide behind them, decorate buildings with them, etc. Our founders enshrined our freedom to express our religious beliefs or lack thereof, as we personally choose. This freedom would
            not seem to be reconcilable with this commandment.

            3 “You shall not take the name of the Lord your God in vain, for the Lord will not hold him guiltless who takes His
            name in vain.”

            Our founders decided to articulate our natural right to say whatever we please, including taking the Lord’s name
            in vain… Our specifically enunciated freedom would not seem to be reconcilable with this commandment.

            4 “Remember the Sabbath day, to keep it holy. Six days you shall labor and do all your work, but the seventh day is the Sabbath of the Lord your God. In it you shall do no work: you, nor your son, nor your daughter, nor your male servant, nor your female servant, nor your cattle, nor your stranger who is within your gates. For in six days the Lord made the heavens and the earth, the sea, and all that is in them, and rested the seventh day. Therefore the Lord blessed the Sabbath day and hallowed it.”

            Ours is a capitalist society, with people working every single day of the week. Our founders set forth that there would be no state religion and that your personal religious beliefs would not be infringed upon. So, you can keep a holy Sabbath day for yourself, or not. The freedom of “or
            not” would not appear to be reconcilable with this Commandment.

            5 “Honor your father and your mother, that your days may be long upon the land which the Lord your God is giving you.”

            This is interesting, given the expansion of government interjection with parent/child relationships. But, that is a separate discussion. Fact is, there are no laws arising out of this commandment.

            6 “You shall not murder.”

            We have a winner!!! OK, one commandment has definitely been incorporated into the body of law in America. However, it has been applied differently over time. Killing a slave, not murder, because they weren’t people. Spouses? Kids? Trespassers? An evolving rule, but one that has surely been incorporated into our
            history.

            7 “You shall not commit adultery.”

            Yeah. Right. No comment.

            8 “You shall not steal.”

            We have a winner!!! OK, we have TWO commandments that have been incorporated into the body of law in America. Property rights are an integral part of our history and make-up.

            9 “You shall not bear false witness against your neighbor.”

            You are not supposed to, but, it happens a lot. Rarely any punishment associated with this commandment, so I would not say that it is integral to the founding of our country.

            10 “You shall not covet your neighbor’s house; you shall not covet your neighbor’s wife, nor his male servant, nor
            his female servant, nor his ox, nor his donkey, nor anything that is your neighbor’s.”

            Again, this is a capitalist society, and coveting is what we do! It motivates us to do better, do more, acquire more, make more. Although, it is interesting to note that
            apparently, women were not required to be encumbered by this commandment…

            In sum, I think the argument that these commandments set forth the principles upon which our laws were fashioned is a bit overstated. Some, we embraced,
            others, we went completely opposite.
            Some served as moral guides which have certainly evolved for good and bad.

          • Victor Grunden

            Short of a total review of all ordinances, laws and court cases, which is impractical in this setting, one can find numerous instances of the Ten Commandment being used as the basis of our Constitution, Paul Revere, a tinsmith, was punished for working on Sunday when the 13 states were colonies. That was English law. The rest of America was French, Spanish and Russian. The Puritans were called that because they rejected the King James version of the Bible. Throw in the paganistic native religions of that time, including Voodoo, and one should readily see, that American society could not have existed very long unless they established laws based on a definite set of rules. England believed in the divine right of kings based on the Genesis version of the sons of God looked upon the daughters of man and lo they were fair and knew them and they bore men of great renown. The appointed Church of the the time was catholic, meaning a single leader, also based on a Bible verse. The protestants believed that violated the principle of idol worship and thus the two branches of Catholic faith and numerous sects of the Protestants were formed. Religious wars were fought and America was formed by Protestants that Declared God granted inalienable rights to all mankind and people were free to choose their own destiny. Thus, they relied heavily on Bible teachings and the Ten Commandments to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, as stated in the preamble to the Constitution. So, when people look at the Ten Commandments displayed in a public building, some will see a religious aspect, some won’t. Considering as the thirteen original colonies became the America of today, absorbing the French, Spanish, Russian and native territories the principle of religious has prevailed even with religious symbolism freely displayed. It is when one group or another wishes to deny that ability to others or define religious symbolism that difficulties occur. Profanity, until it was declared free speech, was outlawed. The two words, besides newly defined hate speech, that are banned by the FCC have to do with bodily functions and have nothing to do with taking the Lord’s name in vain. One can have all the crosses they want on their property. Burn one and the Civil Rights division will appear. So, there are many exceptions, but that doesn’t change the fundamental premise of our laws developing from the Ten Commandments. The Courts seem to have lost the ability of distinguishing between a passive display of faith and active coercion. Even as a capitalist society, there are laws on the books allowing a person their day of rest and preventing employer retaliation. If one prefers being tried by a jury of their peers and their peers are Satanist along with the Judge, they are free to do so. The trial just has to be conducted in accordance with American law. Coveting, the desire to take, or actual taking of another’s possession, is still a crime in business and personal affairs. The desire to “build a better mousetrap” and win by competition was the premise of our business practices but is being eroded by various governmental practices based on covetousness. The battle between the takers and makers has been going on for some time and usually involved political corruption. It is only in recent memory and contrary to capitalist principles, that formal government assistance, and thus inherent unfair competition, has been extended to various groups under one pretext or another.

          • Mr. Grunden. You have presented the most thoughtful and articulate arguments I have ever read in the fractured marketplace of ideas that is the internet. Kudos to you, Sir. We may disagree on the ultimate interpretation to be afforded, but you make intelligent, rational arguments, without resort to ad hominem attack, befitting the best traditions of America. Mine is just one voice in the vast expanse of the universe, but I appreciate yours being out there.

  • Michael2255

    I wonder if any Hobby Lobby judge or justice along the way said “careful what you ask for?”

    • Nah – Alito has a very narrow definition of acceptable religious beliefs that just so happen to align with his ultramontane catholicism. Per RC natural law, contraception is a serious evil act, like abortion, and barely one step away from infanticide. However, in dicta he claimed that the beliefs of jehovah’s witnesses, christian scientists, etc. were somehow less credible than his personal crazy,

  • I’m confused – were you arguing that the Satanic Temple has a valid claim or just taking up column space to bash Catholics and evangelicals?

    • Joe Paulson

      she’s an equal opportunity opponent of special exemptions here … she doesn’t like Yoder (Amish) either.