Formula of Restoration of Religious Liberty Act comes full circle in Florida | Marci A Hamilton | Verdict


The L’Dor Va-Dor Congregation, a Jewish synagogue in Florida, has sued the state, saying Florida’s new restrictive abortion laws violate their religious beliefs. For reasons of faith, they reject the notion that life begins at conception and continue to believe that the health and life of the pregnant person is important. Certainly the Satanic Temple has filed similar cases in particularly restrictive states for the past decade, but mainstream religions have sat on the sidelines as restrictions in a number of states have become increasingly incompatible with their beliefs.

L’Dor Va-Dor’s legal theory holds that the Florida Religious Freedom Restoration Act (“RFRA”) gives them the right to challenge state laws that place a significant burden on their faith. You are absolutely right: An RFRA gives the believer the power to void a law that weighs on their religious beliefs, and that includes abortion laws. Her argument is valid in that a state statute that specifically forbids medical treatment intended to save a pregnant person’s life or health certainly weighs heavily on her belief in the pregnant woman’s right to life.

I am actually surprised that it has taken this long for a mainstream religious organization to file such a lawsuit. The theory has been available as law since the 1993 RFRA was signed into law. That’s right, it was then unavailable starting in 1997 after the Supreme Court ruled RFRA unconstitutional Boerne versus Floresbut when Democrats blinked and let the 2000 RFRA pass — and the Rutherford Institute fanned out to the 50 states to enact state RFRAs — the weapons of religious liberty they needed to fight for their beliefs about abortion were available.

I assume they relied on that in their defense Roe v. calf to avoid outright bans. I’m not sure if history supports such a belief. Last time like this roe was under the heavy artillery it sees today during the 1989 Supreme Court tenure. There were four judges anxious to overrule each other roe: Chief Justice William Rehnquist and Justices Byron White, Anthony Kennedy and Antonin Scalia. “All” they had to do was convince Judge Sandra Day O’Connor to join their side. I was the clerk assigned to the abortion cases in Judge O’Connor’s chambers that semester. Looking back now, I can only marvel at Scalia’s expectation that he could offend her and make her change her mind. In his consent to Webster against reproductive health services The tenure before that, he challenged their refusal roe a view that “cannot be taken seriously”. Pick an adjective to describe this expression: condescending, misogynistic, or just plain stupid if you know O’Connor.

We had several directly challenging cases roe during the 1989 tenure; the self-proclaimed secret “cabal” of legal clerks from the Federalist Society scurried through the courtrooms, pelting me with questions. As history shows, they had to take her seriously. Not only did she refuse to intervene roe She voted to hold Minnesota’s requirement for notification of two parents unconstitutional Hodgson vs. Minnesota, because of the danger to vulnerable pregnant girls. When O’Connor retired, warning bells should have rung just as loudly for the majority of religious believers who reject the notion that life begins at conception as for those who believe that is the case.

The Catholic bishops were the first to point out that an RFRA is a weapon against abortion regulations

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

Now we have come full circle. While it is refreshing to see a dip in the corrupt right-wing pursuit of theocracy that I have discussed here, this recent development deserves every American’s full attention.

Exchange the so-called culture wars for outright religious wars

The United States has now officially said goodbye to what was curiously known as the “culture wars”. There is no other way to describe what is happening in Florida. A religious cohort that has conquered the Republican Party enacted the abortion law, and another religious cohort has a legal argument to attack that law based on the state’s RFRA. It is simply religion against religion without the intermediary governmental institutions and principles needed to direct public policy away from religious wars towards the greater public good. Public order is in the hands of theocrats and irresponsible judges.

Two factors now threaten to embroil us in open religious wars. First, the extreme religious liberty movement characterized by, but not limited to, the RFRAs assumes that believers should be law-free and should have the right to be intolerant of others, to the point of letting people die, regardless of whether the death was caused by pregnancy, COVID-19, or cruelty. Their arguments do not consider the greater good for others or the need to coexist with different faiths. They are committed to “autonomy from the law,” not the rule of law.

Second, the extreme, fundamentalist drive for religious freedom has not limited its efforts to free worship, but has also undermined the separation of church and state. The same theocratic cohort that intends to separate 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 as little respect for the separation demanded by the persecuted Baptists at the founding as it does for it roe.

The good news is that a brave synagogue is stepping into the void, bearing a banner for the majority of believers against an oppressive minority. The bad news is that the legal instrument it has is an RFRA, which is a proven path to religious division and mutual intolerance, not a path to peaceful and respectful coexistence under a common rule of law.


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