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.