The Religious Freedom Restoration Act Formula Comes Full Circle in Florida


The Congregation L’Dor Va-Dor, a Jewish synagogue in Florida, has sued the state saying that Florida’s new restrictive abortion laws violate their religious faith. As a matter of faith, they reject the notion that life begins at conception and further believe that the pregnant person’s health and life matter. To be sure, the Satanic Temple has filed similar cases in particularly restrictive states over the last decade, but mainstream religions have been sitting on the sidelines as restrictions in a number of states have become increasingly inconsistent with their faiths.

L’Dor Va-Dor’s legal theory is that the Florida Religious Freedom Restoration Act (“RFRA”) gives them the right to challenge state laws that substantially burden their faith. They are absolutely correct: a RFRA hands the believer the power to invalidate a law that burdens their religious beliefs, and that includes abortion laws. Their argument has heft in that a state law that affirmatively prevents medical treatment to save the life or health of a pregnant person is surely a substantial burden on their belief in the right of the pregnant to live.

I am actually surprised it took this long for a mainstream religious organization to file such a suit. The theory has been available since the RFRA of 1993 was signed into law. True, it was then unavailable starting in 1997 after the Supreme Court held RFRA unconstitutional in Boerne v. Flores, but when the Democrats blinked and let the RFRA of 2000 pass–and the Rutherford Institute fanned out to the 50 states to enact state RFRAs–the religious liberty weapons they needed to fight for their beliefs about abortion were available.

I suppose, in their defense, they were relying on Roe v. Wade to prevent outright bans. I’m not sure the history supports such confidence. The last time that Roe was under the heavy artillery it is experiencing today was during the Supreme Court’s 1989 Term. There were four Justices intent on overruling Roe: Chief Justice William Rehnquist and Justices Byron White, Anthony Kennedy, and Antonin Scalia. “All” they had to do was to persuade Justice Sandra Day O’Connor to join their side. I was the clerk assigned to the abortion cases in Justice O’Connor’s chambers that Term. Looking back now, I can only marvel at Scalia’s expectation that he could insult and mansplain her into changing her view. In his concurrence to Webster v. Reproductive Health Services the Term before, he called her refusal to overrule Roe a view that “cannot be taken seriously.” Take your pick for an adjective to describe that phrase: condescending, misogynist, or even just stupid if you knew O’Connor.

We had several cases directly challenging Roe during the 1989 Term; the Federalist Society’s self-named secret “cabal” of law clerks scurried around the Court’s hallways, peppering me with questions. As history shows, they had to take her seriously. Not only did she refuse to inter Roe she voted to hold Minnesota’s two-parent notice requirement unconstitutional in Hodgson v. Minnesota, because of the danger to at-risk pregnant girls. Once O’Connor retired, the warning bells should have been ringing as loudly for the majority of religious believers who reject the notion that life begins with conception as for those who believe it does.

The Catholic Bishops Were the First to Point Out that a RFRA Is a Weapon Against Abortion Regulations

Congregation L’Dor Da-Vor is actually playing out a prediction made by the Catholic bishops when the RFRA of 1993 was being debated. The bishops were the first religious lobbyists who understood that RFRA could be invoked to undermine abortion restrictions, and they lobbied against it. They correctly understood that it is a one-size-fits-all weapon for any and all believers, not just the religious right. They feared the millions who disagree with them on when life begins could invoke it to undermine abortion restrictions. They were 100% correct doctrinally. At the time, though, they overestimated the will of their opposition to defend their rights against religiously-driven minority rule.

Now we have come full circle. While it is refreshing to see an inroad into the corrupt right-wing push for theocracy that I discussed here, this latest development deserves every American’s full attention.

Swapping Out the So-called Culture Wars for Outright Religious Wars

The United States has now officially moved on from the “culture wars,” as they were quaintly named. There is no other way to describe what is happening in Florida. A religious cohort that has captured the Republican Party has set the law of abortion, and another religious cohort has a legal argument to attack that law based on the state RFRA. It’s just plain religion vs. religion with none of the mediating governing institutions and principles needed to direct public policy away from religious wars toward the larger public good. Public policy is in the hands of theocrats and unaccountable judges.

Two factors now threaten to trap us in outright religious wars. First, the extreme religious liberty movement, characterized but not limited to the RFRAs, operates on the assumption that believers should be law-free with a right to be intolerant of others, to the point of letting people die, whether the death is caused by pregnancy, COVID-19, or cruelty. Their arguments do not take into account the greater good for others, or the need to live together with different faiths. They embrace “autonomy from the law,” not the rule of law.

Second, the extreme, fundamentalist push for religious liberty has not limited its efforts to the free exercise of religion, but has also undermined the separation of church and state. The same theocratic cohort that intends to divorce believers from the rule of law has dismantled the separation of church and state doctrine. Americans no longer have robust protections from the inevitably corrupting power of religion combined with government. This sitting Supreme Court has no more respect for the separation demanded by the persecuted Baptists at the Founding than it does for Roe.

The good news is that a brave synagogue is stepping into the void, and carrying a standard for the majority of believers against an oppressive minority. The bad news is that the legal tool it has is a RFRA, which is a tried-and-true path to religious division and mutual intolerance, rather than a pathway to peaceful and respectful coexistence under a shared rule of law.

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