RFRA For The Rest Of Us…

Indiana’s ACLU has filed a second challenge to the state’s ban on abortion, and this is a challenge focused squarely upon the blatant hypocrisy of the U.S. Supreme Court’s  purported concern for “religious liberty.”

In a series of cases, the Court has handed down decisions favoring Christian fundamentalist doctrines that are at odds with the beliefs held by more liberal Christian denominations, let alone by adherents of other religious traditions. Justice Alito, who authored the decision in the Hobby Lobby case as well as Dobbs, has clearly signaled his belief that his particular definition of “religious belief”  deserves priority–and he now has four other theocratically-inclined colleagues who agree.

Alito’s definition of “religious freedom” as freedom for state-level lawmakers to impose conservative Christian dogma on Americans who hold very different “sincere beliefs,” is inconsistent with both constitutional jurisprudence and common sense. It’s “freedom for me, but not for thee”–and a not-so- tacit endorsement of the MAGA Republican claim that the United States is a “Christian nation” that should be dominated by their particular version of Christianity.

Ironically, the ACLU has filed this lawsuit under the state’s RFRA law–a law originally ballyhooed by those same Christian Warriors.

“Indiana’s RFRA law protects religious freedom for all Hoosiers, not just those who practice Christianity,” said Ken Falk, ACLU of Indiana Legal Director. “The ban on abortion will substantially burden the exercise of religion by many Hoosiers who, under the new law, would be prevented from obtaining abortions, in conflict with their sincere religious beliefs.”

The complaint points out that the new law violates the beliefs of the Muslim, Unitarian Universalist and Episcopalian faiths, as well as those who follow Paganism. (Rather obviously, it also violates the liberties of  the growing numbers of non-religious Americans.)

As I have previously argued,  a very large number of Americans believe that “liberty” is defined as the right of all citizens to follow the doctrines of their particular religions. When applied to the issue of abortion, any rational understanding of liberty means that people whose beliefs prohibit it are protected from measures requiring it, and people whose beliefs allow (or even, in some situations, require) it are equally free to follow their beliefs.

A free country–a country that takes liberty seriously–does not empower legislators to  decide what prayer you say, what book you read, who you marry, or whether and when you procreate. Perhaps the most eloquent statement of that constitutional principle was that of Justice Jackson in West Virginia Board of Education v. Barnette. In a much-quoted portion of his decision, Justice Jackson wrote:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Justice Alito’s decision in Dobbs essentially reverses Jackson’s 1943 definition of the meaning and  intended operation of the Bill of Rights–a definition that has been endorsed by the courts for decades. Jackson’s definition has been taught in the nation’s law schools and is firmly embedded in the popular culture. In America, We the People make lots of decisions about our governance.  We vote on who will represent us in our various legislative bodies, and–depending upon the state– participate in referenda and recalls.

We don’t vote on fundamental rights.

As any first-year law student (or anyone who took any of my  Law and Public Policy classes) will confirm, the Bill of Rights is taught as a “counter-majoritarian” document. That means that, while a majority of voters can influence innumerable policies, that majority does not get a vote on whether it is permissible to deny other Americans the fundamental rights protected by the Bill of Rights.

We don’t get to vote on our neighbors’ First Amendment right to the free exercise of their religion.

A contrary decision by Indiana Courts would confirm Alito’s profound departure from and disrespect for the essential purpose of the Bill of Rights–and his obvious contempt for people who hold religious beliefs contrary to his own.

It would also highlight the hypocrisy of those Hoosiers who defended RFRA on the grounds that it protected “sincerely held” religious beliefs.


  1. Glad to see the ALCU is acting so quickly to point out the Alito-SCOTUS hypocrisy.

    Then, it brings me back to the fundamental conflict between “the right to life” and the “right to liberty” and the “right to control one’s body and property.” In this more fundamental discussion, there is a pretty clear line protecting almost all life … before the liberty to choose “whose life?” comes into play.

  2. The Supreme Court is not wielding its power over one church, or even one religious denomination, but over entire states and this nation. Everyone knows this to be fact but, have they ever questioned if individual states or the Supreme Court would dare to interfere with one church or one religious denomination to support one group of congregants against another?

    “We don’t vote on fundamental rights.”

    The 1st Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…” yet state level Congressional bodies are allowed to do just that, now with the blessing and full support of the U.S. Congress and the Supreme Court. The Legislature has the responsibility and the power to control the Executive branch of government but there appears to be no responsibility or power to force them to uphold their Oaths of Office to protect us from one leader with too much power or maintain a balance of power in the Supreme Court which has now run amok over the rights of the majority of Americans. No one seems to be in charge; “too many Chiefs and not enough Indians”, who’s milking this cow when the minority controls the majority and we are headed for a White Nationalist coup by religion over protection by a government “of the people, by the people and for the people ” which was not supposed to “perish from the earth”. Protection “of religion” is also an unspoken protection “from religion” we choose not to adhere to.

    “It would also highlight the hypocrisy of those Hoosiers who defended RFRA on the grounds that it protected “sincerely held” religious beliefs.” My married lesbian friends and I argued religion this past Saturday; their “religious beliefs” are based in the Bible; my beliefs in a “higher power” are based in science and evolution as fact. Yet the love we share is strong and unfailing in today’s screwed up world.

  3. JoAnn writes, “Protection “of religion” is also an unspoken protection “from religion” we choose not to adhere to.”

    I don’t know how often I’ve’ read Jefferson’s comments on the separation of church and state, and still confused about what was written and actually practiced.

    Why didn’t the Founders say the US government is a secular government? Period.

    They didn’t, and I suppose that is why we are still debating it. But, also, why doesn’t Congress codify abortions?

    Abortion is a wedge issue used by the oligarchy and their media to divide and conquer, so citizens don’t unify against oppression. Abortion is an emotional whip used by both political parties to keep us distracted from class warfare.

  4. The appellate judge I clerked for had a favorite phrase — to hoist one upon their own petard. It 40 years of practicing law, I took particular delight in taking the opposing party’s argument and using it against them. It is a delight to see ACLU hoist the RFRA advocates upon their own petard.

  5. Is there a reason Judaism was left out of your list of those whose beliefs have been violated? The complaint include three Jewish Jane Does and one Jewish organization.

  6. I dream of organizations like the ACLU filing continuous and multiple lawsuits against the horrific anti-American Dobbs decision just to keep the courts stirred up and unable to focus on anything else until they finally give up and reverse it.

    It would also be helpful if organizations with the financial means would file lawsuits against the religious dominations that were behind that lawsuit. I can think of a variety of valid reasons to personally attack those religions that have forced their beliefs down everyone else’s throats. Legally attacking their BS doctrines that exist only to control their members’ personal lives could possibly have the power to break apart or even destroy their power.

  7. Todd, Congress tried, but failed (passed the House, but blocked in the Senate) to codify the right to abortion. However, as I noted recently, that will have precious little effect unless something is done about SCOTUS. I recommend expanding the court to match the number of circuits (currently 13), which can be codified.

    I’m glad the ACLU has decided on this particular argument. It is the most straightforward way to get to the result we need. It becomes more difficult for the right to birthers to defend policies that clearly are religious in nature. BTW, I have two young friends who are Catholic. When I pointed out that many religions didn’t believe that human life (and the rights associated with it) begins at conception, one who is a lawyer reconsidered her position. The other works for the Catholic Church and didn’t.

  8. No reason. I’ve previously posted about the fact that Jewish law does not consider the fetus morally-equivalent to the mother until the head emerges from the womb. Fewer people seem to realize that other religions (including Christian denominations) also have beliefs at variance with those of the theocrats and paternalists supporting this law.

  9. OK Stephen … so I had to look up ‘petard’ to find a definition: “ a small bomb made of a metal or wooden box filled with powder, used to blast down a door or to make a hole in a wall.” As a trained combat infantry clerk typist, that is a word missing from the morning orders. Extraordinary exchange of ideas this morning. Thank you Sheila.

  10. give me a address where i can directly send a donation to Ind,ACLU that is taking this action…rather than see it ate up in the national ACLU sphere i already donate to..
    Sheila, is there such a address? or i can send it thru you…
    thanks,, best wishes.

  11. Abortion was CHOSEN as a red herring, by the religious right, Jerry Falwell, i believe I have read, for the sole purpose
    of attracting Evangelical types to the political cause. Before that, almost all Christian denominations had no problem with it, even
    praised Roe v. Wade!
    The ACLU is doing yeoman’s work for “the People.”

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