Will your “sincerely held religious beliefs” be protected after Dobbs?

Will your “sincerely held religious beliefs” be protected after Dobbs?

In wake of last week’s SCOTUS decision in Dobbs, removing federal protection of abortion rights, advocates have redoubled their efforts to protect bodily autonomy for all Americans.

This is an issue of religious beliefs. Virtually any discussion attempting to balance the rights of the pregnant person with government interest will include references to Bible verses. When the forced-birth crowd points to verses about God knowing us in the womb (“life begins at conception”) the pro-choice crowd will point to verses where God breathes life into us (“life begins at birth”).

Here’s George Carlin (of course) giving us the correct answer in the first 20 seconds of this video:

For every Catholic defending the fetus because nobody else will, there’s a Protestant or Jew or Muslim defending the pregnant person because their faith teaches more autonomy for and trust in the pregnant person.  An individual’s determination of when life begins is overwhelmingly based on what is often called “sincerely held religious beliefs.”

If “sincerely held religious beliefs” can justify a business not providing complete reproductive health services in the tax-deductible health insurance benefit they offer to employees; if “sincerely held religious beliefs” can justify kicking children of gay parents out of a school receiving tax dollars; if “sincere religious beliefs” can justify restricting the freedom of people to travel as they please within the United States; then “sincere religious beliefs” should allow people the freedom to make these most personal decisions consistent with what they believe.

Would you think it’s scare mongering to suggest our “sincerely held religious beliefs” might be called into question? Before you answer, read about the Florida synagogue concerned enough to file a lawsuit challenging Florida’s restrictive abortion laws.

Then turn to the Volokh Conspiracy blog on the Reason Magazine website, where Josh Blackman has some “Tentative Thoughts On The Jewish Claim To A Religious Abortion” including … 

Judaism is not a centralized religion. There is no Jewish equivalent of a Pope … there is no official or standardized set of teachings. Every Congregation, indeed, every Rabbi, may follow the teachings in different fashions. Moreover, every Jew can look to faith in his own fashion. And there is 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.

Even if we ignore the anti-Semitism bubbling under the surface, Blackman is (tentatively) ready to create a “Sincerely Held Religious Belief Test” to determine whose religious beliefs are sincerely held enough help to warrant constitutional protection. In case you don’t think he was clear … 

Many advocates in the religious liberty community have long been hesitant to empower courts to scrutinize sincerity ... I think this paradigm will have to shift.

How would he scrutinize sincerity? It doesn’t sound good for Reform Jews.

Reform Jews tend not to view [halacha] as binding. So here is the crux of this post: if virtually every other facet of halacha is not binding on members of this congregation, how could it be that this one teaching on abortion is binding – so binding, that a state’s prohibition of that teaching actually substantially burdens the free exercise of religion?

He then suggests Reform Jews who have held pro-choice views “for some time” are less worthy of having their religious rights protected than “draft dodgers who miraculously discovered the virtues of Quakerism” or the “myriad of people who conveniently discovered a religious objection to the COVID vaccine.”

Not enough to have you worried? After positing his own imaginary (and insulting) conversation between a Reform Rabbi and a congregant, he makes clear that …

if a person treats 99.9% of halacha as non-binding … yet deems as binding the interpretation of halacha that affects abortion, I think the person’s sincerity can be challenged.

He fails to explain why a Christian’s sincerity shouldn’t be challenged when they condemn homosexuals while excusing adultery. But he does conclude by making clear … 

the question of whether a law substantially burdens the free exercise of religion turns on how a person practices her faith.

It should be noted that Josh Blackman is not a fringe figure, nor is he writing for a fringe website. The Federalist Society calls him “a national thought leader on constitutional law and the United States Supreme Court.” Reason, the website on which this article was posted, gets a perfect rating from NewsGuard for credibility and transparency; the libertarian site is rated “Leans Right” by All Sides. Considering the source, this is part of the mainstream discussion of religious liberty in conservative judicial circles.

If our religious rights are subject to a “sincerely held religious belief test” as proposed by Blackman, America moves closer to theocracy. The First Amendment will be so distorted that only the most devout – some might say the most extreme – believers will be deemed worthy of having their constitutional rights protected.

That’s not the America I woke up in a week ago.

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