I. Introduction

Religious exemption claims tend to be associated with “conservative” Christians who object to the imposition of liberal, secular values. Such claims often arise in opposition to “culture war” issues like LGBTQ antidiscrimination, contraceptive mandates, and medical refusal to provide abortion services or gender-affirming care.[1] Since 1990, Employment Division of Oregon v. Smith has governed such claims, making it difficult for religious claimants to win an exemption from a law that is neutral and generally applicable.[2] However, in the last few terms, the Supreme Court has ruled consistently in favor of such claims.[3] In a series of cases, the Court expanded its free exercise jurisprudence under the First Amendment, leaving more room for religious exemptions to laws.[4] Most of the Justices even appear ready to overturn Smith,[5] although Justice Barrett expressed hesitation to do so without knowing what legal standard will replace it.[6]

Progressive religionists have hesitated to make religious liberty claims, although a handful of such claims have emerged in recent years.[7] Examples include a person indicted for giving water to a migrant who crossed the border illegally,[8] and a woman cited for giving food to unhoused people in a local park in violation of a city ordinance.[9] Both claimed that religious liberty protections for their religion entitled them to an exemption from criminal laws.[10] Especially after a recent series of Supreme Court decisions siding with free exercise claimants,[11] the door of free exercise seems open wider than ever.[12]

Now that the Supreme Court has overturned the fifty-year precedent of Roe in Dobbs,[13] there is more conversation than ever about progressives claiming religious exemptions—in this case, from state abortion bans. In the aftermath of Dobbs, and in light of the Court’s expansion of the free exercise doctrine, several Jewish (and other faith) leaders in Florida have filed complaints arguing that their state’s abortion ban violates their rights: freedom of speech and free exercise under the First and Fourteenth Amendments, as well as religious freedom protections in the Florida RFRA and the Florida Constitution.[14] Similar challenges have been filed in a half dozen other states.[15]

A. The Underappreciated History of Religious Support for Reproductive Rights

Grounding a claim to abortion rights in religion is neither novel nor fringe. Olivia Roat has outlined a rich history of religious traditions supporting abortion rights.[16] These faiths call on religious principles like “dignity and worth,” “freedom of conscience,” and the “moral imperative” of access to healthcare.[17] Some faith voices, including some Jews, root their claim in a religious commitment to “individuals’ moral agency” and “God-given free will.”[18] On this view, individual agency itself is sacred. Some religions elaborate on this sense of agency by connecting it to human dignity.[19] This fundamental concept may include “autonomy, freedom from coerced childbirth, and freedom from stigma” imposed because of one’s moral choices.[20] Some abortion providers, too, express their commitments in religious terms. They believe the reproductive healthcare they provide is a “spiritual and moral act.”[21]

Before Roe v. Wade established constitutional protection for abortion rights in 1973, a group of twenty-one interfaith clergy established the Clergy Consultation Service (CCS) in 1967 to help counsel pregnant women and refer them to safe abortions.[22] CCS grew into a nationwide network and referred about 500,000 women during its six years of operation.[23] During the same period, some plaintiffs made free exercise arguments when raising legal challenges against state abortion restrictions. In a pair of pre-Roe cases that sought to invalidate state bans on abortion, the female plaintiffs raised First Amendment religious claims for the right to an abortion unfettered by state limitations.[24] Although the idea of pro-choice religion may not fit neatly into the American culture-war rhetoric surrounding abortion, the historical record reveals a continuous and robust tradition of religious voices supporting a right to reproductive choice.[25]

B. (Reform) Jewish Views of Abortion[26]

Jewish legal tradition has expressed views on abortion for just about as long as there has been a rabbinic tradition. The "central biblical text which has informed Jewish response to abortion appears in the book of Exodus . . . ":[27]

When [two or more] parties fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact, the payment to be based on reckoning. But if other damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.[28]

This passage gave rise to many Jewish commentators’ notion of a legal distinction between a pregnant woman and her fetus.[29] The text imposes monetary damages for the accidental (or perhaps negligent) destruction of a fetus. But the penalty imposed for causing the death of the pregnant woman herself is much harsher: “life for life.” Based on this distinction, “later authorities derive the principle that a woman has the full status of a nefesh [“life”], while the fetus has a lesser status.”[30] For example, a Talmudic text says that a fetus that has not yet reached forty days is “merely water.”[31] An ancient rabbinic commentary describes the process by which a fetus can be destroyed if it threatens the woman’s life in childbirth, including “bring[ing] it forth limb by limb, because her life comes before the life of [the child].”[32] In other words, destroying a fetus does not bear the same moral weight as taking a human life.

Although a full accounting of the history of Jewish views on abortion is beyond the scope of this Note,[33] we can summarize generally in two broad categories: strict and lenient.[34] Much scholarship traces the strict view to the medieval scholar Maimonides, whose commentary focuses on the status of the fetus as a “pursuer,” a Jewish legal category that allows killing in self-defense.[35] Only if the fetus is actively pursuing—i.e., threatening—the mother’s life is an abortion allowed, and possibly required. The lenient view relies on the medieval scholar Rashi, who defines the fetus as a nonlife, in line with the Exodus text.[36] Those who consider the fetus to be less than a full human life are willing to permit an abortion in more circumstances than adherents of the strict view.

Within Orthodox Judaism, which tends to correlate with the strict view, a prevailing sense of the general thrust of Halakhic literature “concedes that virtually all authorities agree that Jewish law does not merely sanction but deems mandatory abortions in cases where the continuation of the pregnancy threatens the life of the mother.”[37] By contrast, Reform Jewish positions on abortion tend to be more “lenient,” permitting abortion not only under threat to the pregnant woman’s physical health but also her psychological well-being.[38]

C. The Supreme Court’s Free Exercise Expansion

The collision of rights and freedoms discussed in this Note came to the forefront following the Supreme Court’s recent shifts in religious freedom doctrine. The Court’s free exercise and RFRA[39] jurisprudence “has been aggressive in granting mandatory accommodations for religious objectors who claim that various state and federal laws . . . violate tenets of their faith.”[40] Before this aggressive shift, Employment Division of Oregon v. Smith[41] governed First Amendment free exercise religious exemption claims.[42] The Smith rule “forbade anti-religious targeting” by the government, while “acknowledging that in some . . . circumstances laws will ‘incidentally’ burden religious practices” without violating the Constitution.[43] This rule allowed courts to avoid striking down or granting exemptions to neutral, generally applicable laws with merely incidental (that is, unintentional) burdens on religion.[44]

Before and during the COVID-19 pandemic, a series of cases evinced important shifts in the Court’s free exercise doctrine.[45] A key component of this shift involves religion being given what some scholars call “most-favored nation” status.[46] Under this theory, “government regulation must treat religious activities at least as well as the most favorably treated comparable secular activities.”[47] As the Court held in Tandon v. Newsom, which is emblematic of this doctrine, “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.”[48]

Although the most favored nation doctrine appears in different forms,[49] one is particularly relevant to this discussion. As Andrew Koppelman noted, “Exceptions mean the [state] interest isn’t compelling.”[50] In other words, not only does the most favored nation theory trigger strict scrutiny, but it may also allow judges to infer the weakness of the state’s asserted interest from the presence of exceptions.[51] Under this doctrine, courts have been much more accommodating to religious exemption claims.[52] And as discussed below, the possibility of exceptions undermining the state’s compelling interest may be important to plaintiffs bringing free-exercise abortion claims.[53] By this logic, an abortion ban with any secular exception—e.g., rape, incest, or mother’s life—should also accommodate religious exemptions, or at least trigger strict scrutiny. More so for a RFRA claim, where strict scrutiny applies even for a law of general applicability.[54]

D. The End of Roe and the Rebirth of Religious Abortion Claims

In this new landscape of supercharged free exercise doctrine, Dobbs opened the door to a collision between religious exemption jurisprudence and abortion.[55] With Roe overturned, states can enact abortion bans or enforce trigger bans that came into effect.[56] The same Court that opened the floodgates to religious exemptions also allowed for the criminalization of abortion. The stage was set for religious claimants, including Jews, to challenge state abortion bans under the Court’s newly expanded theory of free exercise. Although conventional wisdom seems to hold that mostly conservative religionists use the Free Exercise Clause to claim exemptions—e.g., for anti-LGBTQ discrimination or COVID-19 vaccine exemptions—progressives are increasingly taking advantage of the opportunity to challenge abortion bans on religious grounds.[57]

III. Three Paradigms: How Courts Wrestle with Religion

A. Affirmative or Refusal: How Substantial Is Your Burden?

A free exercise claim under the First Amendment or RFRA typically must show that the claimant’s religious exercise was substantially burdened.[58] Angela Carmella has identified a categorical split in how courts treat this substantial burden element of free exercise claims, depending on whether they are affirmative or refusal claims.[59] This division operates as a tacit set of judicial assumptions, and it undergirds how courts evaluate the burdening of religious exercise.

In a refusal claim scenario, a state law or regulation requires some kind of proactive conduct that conflicts with a religious believer’s faith. These claims arise “when a law or government policy mandates a person to act in ways that are contrary to her faith, and she refuses to comply.”[60] The believer’s refusal arises as a free exercise claim because a government mandate has burdened the believer’s religious practice. As a result, “[r]efusal claims originate with the law because they are provoked by a law.”[61]

In contrast, in an affirmative claim scenario, the believer’s faith teaches[62] her to do an affirmative act, but a state law restrains such an act. Affirmative claims originate when the claimant’s faith tells her what to do and then runs up against a law restraining such conduct.[63] “While refusal claims are generated by what the law requires, affirmative claims are guided instead by what a religion teaches. Faith, not the state, says, ‘Do this.’ Thus, affirmative claims, as their name suggests, are immensely wide-ranging.”[64]

Carmella argues that “[m]ost liberal [f]ree [e]xercise claims are affirmative claims.”[65] Examples include churches housing the unhoused and feeding the hungry in violation of local zoning ordinances; Unitarian volunteers providing food and water to migrants crossing the border in violation of federal law; Native Americans protesting a natural gas pipeline across their land; and congregations offering sanctuary to undocumented migrants.[66]

Contrast these with refusal claims, which tend to align with “conservative” politics. Examples include: employers refusing to obey a government mandate to provide contraceptive coverage to their employees; bakers and vendors refusing to provide wedding-related services to same-sex couples despite antidiscrimination laws; religious adoption services refusing to place children with same-sex couples or certain religions; and religious hospitals and health care professionals refusing to provide abortion services and gender-affirming care.[67] It is important to note that “free exercise victories thus far in the Roberts Court have mostly benefited religious conservatives, whatever their denomination, and the most high-profile cases have involved resisting antidiscrimination, public accommodation, equal access, and public health laws.”[68]

Refusal claims tend to fare better in court, in part because it is easier to establish a substantial burden with a refusal claim than an affirmative one.[69] Refusal claims are narrower, and the government coercion is direct and obvious: abide by the state mandate or face penalties.[70] Carmella’s thesis may help explain why the current Court has been so hospitable to free exercise claims. Many of the free exercise claims reaching the Court are refusal claims, almost always cases of conservative Christian refusal to abide by a secular law that burdens the practice of their faith. Even “substantial-burden skeptics”[71]—as Carmella calls judges who probe free exercise claims deeply and critically—must admit that a religious practitioner forced to act in accordance with a government mandate that violates her faith is under direct coercion by the state.

By contrast, affirmative claims are more vulnerable to skeptical judges, who probe for the existence of legal alternatives to the affirmative claimant’s supposedly burdened religious activity. For example, a Christian woman whose faith calls her to feed the hungry, but who chooses to do so in a way that violates a local ordinance, may have other legal alternatives, such as volunteering at a food bank. These alternatives may render her religious burden legally insubstantial in the eyes of the court. Whereas a refusal claimant is stuck in a box between a religious commitment and a mutually exclusive government mandate, an affirmative claimant likely arrived at her faith-motivated activity through “an indeterminate, fluid, contextualized, and discretionary process.”[72] A fluid and highly individualized process of religious discernment is exactly what triggers the substantial-burden-skeptic judge.

Carmella’s analysis predates the Dobbs decision, and it includes only one gesture toward the possibility of claiming a free exercise right to abortion.[73] It is possible that progressives did not take such a claim seriously before Dobbs because of their general skepticism toward religious exemptions, and because Roe’s long-settled precedent convinced them they didn’t need to develop these arguments.[74] In the wake of Dobbs, trigger bans and new abortion restrictions have ignited a firestorm of pro-choice reactions, including among religious supporters of reproductive rights. Carmella’s framework of refusal and affirmative claims might shed light on current litigation of free exercise claims under abortion bans.

Applying this framework to abortion raises the question of whether a free exercise claim to abortion is a refusal or affirmative claim. It has aspects of both, but I believe the Court is likely to treat it—wrongly—as an affirmative claim. On its face, a free exercise claim to an exemption from an abortion ban seems like an affirmative claim. A neutral state law bars a certain practice that the religious adherent believes she can seek or perform in accordance with her faith. But the affirmative/refusal framework fails to capture an important reality of religious life: actively engaging in conduct can be as religiously important as refraining from conduct.[75] A court may favor refusal claims because of a perceived ease of identifying the government coercion and therefore the substantial burden on religious exercise. But religions contain positive and negative commandments, and it’s not for courts to determine which are more legitimate or essential to a believer. From a religious practitioner’s point of view, there is little experiential (which is to say, spiritual) difference between being forced to do something that your faith rejects and being forced to refrain from doing something that your faith inspires or demands.

Furthermore, abortion is a unique case of activity that may not fit neatly within the affirmative/refusal framework. Although an abortion ban is facially a prohibition of certain conduct, it is substantively a mandate to engage in behavior—to carry a child to term and give birth.[76] The state likely will frame a ban in terms of outlawing certain acts, not coercing their performance. But an abortion ban is of a fundamentally different kind than, say, an ordinance against feeding the hungry in a city park. Someone barred from feeding the hungry in a particular park is not necessarily or logically required to engage in other affirmative behavior; someone barred from accessing an abortion is effectively required to bear a child. An abortion ban is more like an antidiscrimination mandate, under which the state requires conduct: serving LGBTQ people equally, in one case; carrying a baby to term, in the other. From the standpoint of a pregnant woman, banning abortion is the functional and logical equivalent of coercing childbirth.

A substantial-burden skeptic judge would step into a strange and uncomfortable analytical zone when evaluating substantial burden by probing for legal alternatives. Does a pregnant person whose faith allows abortion have legal alternatives that allow her to obey the abortion ban but not have a child? Under the legal alternatives test, a free exercise claim to abortion resembles a refusal claim. There is no legal—not to mention practical—alternative.

Perhaps such thinking was behind Justice Barrett’s question during the Dobbs oral argument about safe haven laws.[77] Barrett asked if safe haven laws might lessen her burden from forced motherhood to merely childbirth without the responsibilities of parenting.[78] Barrett was not asking in the context of a substantial burden on religious exercise, but it requires little imagination to extend her thinking to such a claim. Would she and the other justices who consistently rule in favor of free exercise claimants[79] behave like substantial-burden skeptics in the face of an abortion claim—despite its substance as a refusal claim? If the Dobbs oral argument was any indication, the answer may be yes. Whatever inconsistency this may belie in the Court’s religious jurisprudence should not be surprising; free exercise doctrine is “sufficiently manipulable that it can be used to reject certain kinds of religious liberty claims while accepting others.”[80]

The framing of a free exercise abortion claim as an affirmative claim runs into another problem in the hypothetical context of a total abortion ban with no exception for the mother’s life.[81] In this context, a Jewish claimant would be caught between a state mandate to maintain the pregnancy at all costs (under threat of penalty or prosecution) and a direct religious mandate to prioritize the mother’s life over the fetus.[82] Even the harshest substantial-burden skeptic could find no legal alternative to relieve the at-risk pregnant claimant’s religious burden.

B. Mandated or Motivated: How Sincere Is Your Faith?

Importantly, the narrowness of that hypothetical highlights an asymmetry built into the affirmative/refusal paradigm. Courts tend to take “orthodox” religion more seriously than “liberal” religion. Whether this preference arises under the substantial burden analysis or the question of sincerity of religious belief, liberal religions receive less deference. This religious preferentialism[83] may be a natural consequence of asking judges to evaluate religious claims. They recognize in religion what most resembles what they know: clearly defined and authoritative rule-based systems with little room for “indeterminate, fluid, contextualized, and discretionary” individual decisions.[84] Or it may be a consequence of asking Christian judges to evaluate religious claims.[85]

The preference for orthodox religions over liberal, based on the notion of obligation, finds expression also in questioning the sincerity of liberal religions. Some conservative commentators would have courts more aggressively interrogate the sincerity of religious claimants by probing for religious compulsion.[86] The argument goes something like this: if a religion doesn’t have a central authority and a concept of religious obligation, then an adherent’s beliefs are vulnerable to a sincerity inquiry. In other words, if the religion doesn’t require a behavior, the adherent has no free exercise grounds to engage in it.[87] Conceptually, this view is a corollary to the affirmative/refusal paradigm. An affirmative claim, recall, is rooted in a believer’s so-called “indeterminate, fluid, contextualized, and discretionary process.”[88] The conservative critique argues that the law should not recognize such a fluid, individualized process.[89]

A recent version of this argument suggested that Reform Jews can never bring free exercise claims because their lack of religious obligation undermines any potential substantial burden claim.[90] Other scholars have challenged this argument compellingly,[91] so I will add only that this argument misunderstands Reform Judaism on its own terms. Reform Judaism, although theologically “liberal,” nonetheless contains mandates. Classically, Reform Judaism bifurcated ritual and ethical laws and declared the ritual laws nonbinding.[92] This jettisoning of obligation in the context of halakhah[93] obscures what was retained: ethical laws remain binding.[94] The protection of a mother’s life and health as a priority over the fetus can be seen as such an ethical mandate. Reform Jews may not believe in Hell or other divine punishment for violating ethical laws, and they do not use excommunication, but those theological questions are not the proper subject of a court’s inquiry.[95] It is enough that the religion teaches it, especially when that teaching includes obligation.[96]

There is another sense in which liberal religion, including Reform Judaism, may include a mandate and not merely permission for abortion. Reform Judaism believes in “informed choice,” elevating autonomy to the level of a spiritual ideal, rooted in a commitment to freedom of conscience.[97] This commitment to autonomy and freedom of choice is a form of religious obligation. That it does not resemble a hierarchical form of religious obligation should not undermine its legitimacy under the law. In the abortion context, this commitment manifests as requiring respect for a pregnant woman’s autonomous judgment and freely chosen outcome.[98]

As Reform Jewish theologian Rabbi Eugene Borowitz wrote, traditional Jewish legal arbiters have “no greater access to God’s present will than the rest of us possess.”[99] In other words, setting aside traditional Jewish law as only one view of God’s demands on us does not rid Reform Judaism of all obligation or legitimacy. It transfers the power of perceiving and defining that obligation to the individual, in dynamic relationship with tradition, community, and God.[100] For a court to deny the sincerity or substantial burdening of this type of faith, because it doesn’t resemble what the court recognizes as authentic religion, is inconsistent at best, and fraught with religious preferentialism at worst.

C. Ritual or Political: How Religious Is Your Belief?

Some scholars indeed believe that the Court operates within a “regime of religious preferentialism,” using the elasticity of free exercise doctrine to accept some religious claims and deny others.[101] The Kennedy v. Bremerton opinion may help shed light on another aspect of this preferentialism: courts seem to favor free exercise claims rooted in personal ritual acts rather than public religious conduct with political resonance.[102]

The Kennedy majority’s analysis emphasized the nature of Coach Kennedy’s religious observance: “a quiet prayer of thanks”; “giving thanks through prayer briefly and by himself”; kneeling and bowing his head for a “brief, quiet prayer”; “a brief, quiet, personal religious observance . . . .”[103] The Court takes pains to describe how quiet, innocuous, personal, and unobtrusive Coach Kennedy’s religious activities were.[104]

Such a narrow description would seem unnecessary, considering that the same Court invoked a much broader standard of free exercise protection when it quoted Smith to explain the “most important work” of the Free Exercise Clause: “protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the performance of (or abstention from) physical acts.’”[105] Living out one’s faith through physical acts appears to sweep broadly, to protect all outward activities that a believer performs (or refrains from) to live out sincere religious beliefs. One might even think this broad sweep of the Free Exercise Clause would protect affirmative claims, such as feeding the hungry, providing sanctuary to the undocumented, and perhaps even seeking abortion services in fulfillment of a religious commitment.

Coach Kennedy’s own religious exercise bears certain hallmarks of an affirmative claim: his faith did not require him to pray on the fifty-yard line after games.[106] He had legal alternatives.[107] His faith inspired him to pray then and there—not unlike the “indeterminate, fluid, contextualized, and discretionary process” at work in affirmative claims that courts tend to disfavor.[108] Yet the Court sided with him anyway.[109]

Several factors may have weighed in Kennedy’s favor. The school district’s specific direction not to pray at a particular time and place looked to the Court like direct government restraint of religion.[110] In other words, the school district’s attempt to avoid a potential Establishment Clause problem created a free exercise problem. Kennedy’s claim to pray was still an affirmative claim, but the government’s direct coercion with threat of penalty (termination) was enough for the Court to validate his claim.[111] Why didn’t the Court treat his claim like that of a typical affirmative claimant, e.g., the woman arrested for feeding the hungry in a park, or the activist arrested for helping migrants near the border—both of whom faced not merely termination but criminal penalties?

Ironically, it was the liberal dissent who stepped into the role of substantial-burden skeptic by raising the issue of legal alternatives for Kennedy’s religious exercise.[112] Kennedy could have returned to the stadium to pray while off duty, or he could have prayed in a less conspicuous manner while on duty. This is the kind of substantial burden probing that is more characteristic of courts deconstructing liberal free exercise claims.[113] For the dissent, the presence of so many adequate alternative means of praying meant that the school district had met its burden of narrow tailoring.[114] But for the majority, the district’s targeting of Kennedy’s religious activity created such specific coercion, and therefore burden, on Kennedy’s religious exercise that it was easy to side with the praying coach.[115]

That conclusion raises a related factor weighing in favor of the praying coach, despite that he was an affirmative claimant with multiple legal alternatives to fulfill his religious exercise. The scope of Kennedy’s claim was narrow and gave the Court cover to rule in his favor. Despite invoking Smith’s broad language of protecting any physical activity that “live[s] out” a religious belief, the Court confronts only a relatively easy case of personal prayer.[116] Not only does the act of prayer also invoke the Free Speech Clause—which the majority readily cites in Kennedy’s favor[117]—it also conveniently avoids raising harder questions about what counts as religious exercise.

Acts of prayer, worship, and ritual make for relatively easy cases. In fact, when Justice Gorsuch contemplated the implications of the dissent’s preferred rule, the only religious acts he offered as examples were personal, ritual acts: “praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice.”[118] The scope of acts Justice Gorsuch listed here was narrower than his sweeping invocation of Smith had suggested. Earlier, it was any physical act that allows the claimant to “live out” a religious belief.[119] By the end of the opinion, Justice Gorsuch seems to have limited the range of protected religious activity significantly: “Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head.”[120]

Whether Justice Gorsuch framed the range of protected expression this narrowly to limit Kennedy’s impact on other religious activity, or because he believes that to be the range, is unclear. In Tandon and other COVID-19 church cases, he sided with the majority to favor churches’ affirmative claims to worship in person, despite a public health limitation on the size of indoor gatherings.[121] The presence of alternatives, such as outdoor, virtual, or smaller gatherings, did not lead the majority in those cases to question the substantiality of the burden on the churches’ religious exercise.[122]

It may be that free exercise claims based on actual prayer (or related worship or ritual acts) garner the most support from courts because of a deep-seated bias toward ritual acts as the most legitimate religious exercise—and even as the standard by which other religious acts should be judged. In a set of free exercise cases involving churches, churches and courts alike assumed that “worship” would be recognized, and they evaluated other activities in light of that assumption.[123]

By contrast, courts are less likely to grant free exercise exemptions—and more likely to probe for legal alternatives to supposedly burdened religious exercise—with respect to nonworship activity.[124] For example, when a No More Deaths volunteer was charged with criminal conspiracy and harboring for his humanitarian aid to undocumented immigrants, he claimed his conduct was a “sacred act” that was “require[d]” by his faith.[125] The judge rejected the free exercise claim on substantial burden grounds.[126]

This issue resonates within the Jewish community. During the civil rights movement, Rabbi Abraham Joshua Heschel famously marched with Martin Luther King, Jr.[127] Rabbi Heschel described his participation in civil rights marches and organizing as an expression of his religious commitments, saying that it felt like his “legs were praying” when he marched with King.[128] It was his way of following the prophetic call to justice in the Hebrew Bible.[129] Reform Judaism has similarly embraced the prophetic voice of Jewish tradition as a religious imperative.[130] Related to Classical Reform Judaism’s bifurcation of tradition into ritual and ethical laws, Reform Judaism often sees its highest calling in living out the prophetic mandate to work for social justice.[131]

Some critics argue that Reform Judaism’s social justice agenda is merely a progressive political platform masquerading as a religious denomination.[132] Although there may be broad alignment between Reform Jewish policy positions and certain political agendas, the mere presence of such alignment or overlap should not negate the legitimacy and authenticity of the religious beliefs in play. Indeed, the Reform Movement justifies its “political” positions with reference to Jewish text and tradition.[133] Critics may reasonably disagree with the issue-specific application of those texts and traditions, but the activity is legitimately rooted in religion.

The problem on the legal side is that courts may not always see religion that way. In the No More Deaths case, the magistrate judge unknowingly echoed some critics of Reform Jewish social justice when he described the religious claimants as “draping religious garb over [political or philosophical] activity.”[134] For a judge to delegitimize claimants’ religious beliefs because they align with a political agenda is to open a pandora’s box of cultural, political, and religious bias. To see the asymmetry, consider a thought experiment: imagine if a judge had thrown out the (conservative) religious claim—in, e.g., Masterpiece Cakeshop (baking a cake for a same-sex wedding), Hobby Lobby (providing contraceptive coverage), Tandon (complying with COVID shutdown protocols), or Kennedy (praying after football games)—because it was motivated merely by political or philosophical beliefs and not actually by religion.[135] There seems to be an implicit assumption at work that conservative religious beliefs are religious, but liberal religious beliefs are political agendas draped in religious garb.[136]

If a religious agenda aligns with a secular political platform, might it be because the political agenda was inspired and informed by a faith movement? Would anyone argue that a personal religious belief to abstain from work on the Sabbath is merely a political statement draped in religious garb—because of the secular commitment to a weekend? Was a religious commitment to nonviolent civil disobedience during the civil rights movement a political ideology masquerading as religion—or a religious movement deeply rooted in the Gospel and Exodus narrative that transformed American politics?[137] The history of American social movements is a history of religious and secular forces working in parallel and partnership. Why should a religion’s alignment or overlap with a secular political movement negate the legitimacy of the religion’s belief?[138] If Justice Gorsuch meant it when he quoted Smith—that the Free Exercise Clause protects living out one’s faith by performing or abstaining from physical acts—then religious acts that sound in a political arena merit protection, too. It is not a stretch to worry that the same courts that favor Christian and conservative free exercise claims are also more likely to dismiss liberal religious claims as merely political, and therefore neither sincerely religious nor substantially burdened.

IV. Implications for Religious Abortion Claims: Two Hypotheticals

The Court may have painted itself into a corner with respect to Jewish challenges to abortion bans.[139] Given the most favored nation theory of religion and the increasing friendliness to religious exemptions, the door is open to such claims.[140] Consider the Orthodox/Reform binary introduced above,[141] together with the following thought experiment involving, respectively, a total abortion ban with no exceptions, and an abortion ban with some secular exceptions.

First, consider a total abortion ban with no secular exceptions. An Orthodox Jew confronted with a life-threatening pregnancy could bring a refusal claim against such a law, grounded in a sincerely held belief that Judaism requires an abortion in these circumstances.[142] This sincere believer’s mandated religious exercise—namely, to save a life by terminating a life-threatening pregnancy—has been directly and unavoidably burdened by a state law precisely preventing this practice. The believer has no legal alternatives available to fulfill her religious mandate. The law coerces her to undergo dangerous childbirth under threat of government penalty. By the logic and track record of refusal claims, and the Court’s strong free exercise doctrine, in theory, this plaintiff’s claim could fare well before the Court.[143]

Second, consider an abortion ban with several secular exceptions, such as rape, incest, or the health of the mother. A Reform Jew’s claim for a religious exemption to this law could take at least two forms. First, a court could analyze it as an affirmative claim, grounded in a sincere belief that the claimant’s religion permits an abortion in such circumstances. This claim is unlikely to prevail because courts tend to disfavor affirmative claims, especially when they involve religious acts other than personal prayer or worship, for lack of sincere belief or substantial burden on nonobligatory religious exercise.[144]

Alternatively, a court could analyze this as a stronger refusal claim, grounded in the state’s denial of the claimant’s religious obligation to make a free choice about her body and pregnancy.[145] One could even argue that Reform Judaism’s elevation of individual autonomy as a sacred value transforms permission to have an abortion into a mandate to follow one’s own conscience.[146] Moreover, under the mostfavored nation theory of religion, the ban’s allowance of secular exceptions renders the statute nonneutral or generally applicable and should trigger strict scrutiny under Smith, weaken the state’s compelling interest, and strengthen the religious exemption claim.[147] Under the recent line of cases, in theory, this plaintiff’s claim could fare well before the Court.[148]

However, both claims are likely to fail. First, the Court exhibits several kinds of religious preferentialism.[149] Whether by favoring refusal claims over affirmative ones, conservative religion over liberal faith, ritual acts over “political” conduct, or Christian beliefs over other religions’, the Court does not always behave like a neutral arbiter among religions.[150] And it has at its disposal an “increasingly vague, manipulable, and readily exploited” free exercise doctrine to implement its preferentialism.[151] It could deny the second type of claim by probing the claimant’s sincerity of belief, substantiality of religious burden, or political motivation.

Second, the Court could anchor its denial of either type of claim in the “compelling interest” component of its free exercise jurisprudence.[152] For example, a state’s interest in protecting fetal life could trump a person’s right to terminate a pregnancy, especially a woman whose choice was deemed to be affirmative, nonobligatory or politically motivated—as opposed to genuinely religiously compelled.[153] Although the Dobbs decision did not directly affirm the personhood of a zygote, some commentators argue that such a belief underlies the majority’s decision.[154]

V. Conclusion

A series of recent Supreme Court decisions has inaugurated an aggressive new era of free exercise jurisprudence. It is a good time to claim a religious exemption, especially if your claim is a refusal claim, rooted in a clear religious mandate, ritual rather than political, and conservative or Christian.

Enter Reform Jews and other liberal religionists with their own free exercise claims, including the right to an abortion under a state ban. On the merits, such claims could stand as protected free exercise. However, given how politically charged and legally unique the abortion issue is, it remains to be seen whether such claims will be met with the same friendliness as other free exercise exemptions. Some scholars believe that the elasticity of free exercise doctrine will allow the Court to treat “liberal” religious claims less favorably than others. Clarifying the Court’s doctrine, including the proper analytical paradigms for religious claims, would help ensure that the diverse faith commitments of all Americans could share in the promise of equal justice for all—or, at the very least, judicial transparency.

David Segal

  1. Angela C. Carmella, Progressive Religion and Free Exercise Exemptions, 68 U. Kan. L. Rev. 535, 541, 551, 554–55 (2020).

  2. See generally Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872 (1990); see also infra Section II.C.

  3. Caroline Mala Corbin, Religious Liberty for All? A Religious Right to Abortion, 2023 Wis. L. Rev. 475, 480 (“Court-ordered religious exemptions, once fairly rare, have now almost become presumed.”); Elizabeth Sepper, Free Exercise of Abortion, 49 BYU L. Rev. (forthcoming 2023) (manuscript at 14) https://ssrn.com/abstract=4553079 [https://perma.cc/XY7E-FAYH] (“[I]n the last decade, the Supreme Court has turbocharged religious liberty rights.”).

  4. See sources cited supra note 3; see also cases cited infra note 11 and accompanying text.

  5. See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1882 (2021) (Barrett, J., joined by Kavanaugh, J., concurring); id. at 1883 (Alito, J., joined by Thomas and Gorsuch, JJ., concurring); id. at 1926 (Gorsuch, J., joined by Thomas and Alito, JJ., concurring); see also Stephen M. Feldman, The Roberts Court’s Transformative Religious Freedom Cases: The Doctrine and the Politics of Grievance, 28 Cardozo J. Equal Rts. & Soc. Just. 507, 539 (2022) (“The Roberts Court has not explicitly overruled Smith, but it has in effect repudiated most of its doctrinal significance.”).

  6. Fulton, 141 S. Ct. at 1882–83 (Barrett, J., joined by Kavanaugh, J., and joined in part by Breyer, J., concurring).

  7. Carmella, supra note 1, at 544–45, 591–92. For a history of such claims, including recent examples, see also Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right at 22–64, L., Rts., & Religion Project, Colum. L. Sch. (Nov. 2019), https://lawrightsreligion.law.columbia.edu/sites/default/files/content/Images/Whose Faith Matters Full Report 12.12.19.pdf [https://perma.cc/5XGC-TG6H].

  8. Carmella, supra note 1, at 600 (citing Paul Ingram, Prosecutors Argue No More Deaths Volunteer Conspired to Protect 2 Men in Country Illegally, Tucson Sentinel (May 29, 2019, 4:46 PM), https://www.tucsonsentinel.com/local/report/052919_warren_nmd_trial/prosecutors-argue-no-more-deaths-volunteer-conspired-protect-2-men-country-illegally/ [https://perma.cc/7J6M-U7QV]. The government dropped the charges two years later. Paul Ingram, Feds Drop Case Against No More Deaths Volunteer Scott Warren, Tucson Sentinel (Feb. 27, 2020, 3:39 PM), https://www.tucsonsentinel.com/local/report/022620_warren_charge/feds-drop-case-against-no-more-deaths-volunteer-scott-warren/ [https://perma.cc/8S96-DWZG].

  9. Joan Vinson, City Dismisses Joan Cheever’s Homeless Feeding Citation, San Antonio Report (July 14, 2015), https://www.nbcnews.com/news/crime-courts/arizona-woman-sues-city-arrested-feeding-homeless-people-rcna54324 [https://perma.cc/E2G7-5M9K]; see also Carmella, supra note 1, at 602–04.

  10. See Ingram, supra note 8. Many recent examples of progressive religious claims have arisen under RFRA and not First Amendment free exercise because RFRA’s protection applies even when a law is neutral and generally applicable. See Carmella, supra note 1, at 591–615; see also infra notes 39 and 54 and accompanying text. However, the recent strengthening of free exercise doctrine suggests that the gap between RFRA and First Amendment claims may narrow, especially as the Court finds more laws not neutral or not generally applicable. See infra Section II.C.

  11. See, e.g., Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 701, 736 (2014); Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1732 (2018); Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66, 69 (2020) (per curiam); Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021); Fulton, 141 S. Ct. at 1882; cf. 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2321 (2023) (applying the Court’s eighty-year-old precedent for protecting “deeply unpopular” views, including in matters of religion, to allow a Christian web designer to refuse to make a wedding website for a same-sex couple (citing W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943))). Compare Groff v. DeJoy, 143 S. Ct. 2279, 2286, 2294 (2023) (holding that Title VII requires that an employer must show more than a de minimis burden to refuse an Evangelical Christian employee’s religious request for Sabbath accommodation), with Braidwood Mgmt., Inc., v. EEOC, 70 F.4th 914, 937 (5th Cir. 2023) (holding that a corporation whose religious beliefs would be burdened by Title VII’s antidiscrimination provisions has a right to an exemption under RFRA); see also James Nelson et al., The Supreme Court Just Dealt a Major Blow to Corporate Mandates, Slate (June 30, 2023, 10:57 AM), https://slate.com/news-and-politics/2023/06/supreme-court-war-woke-businesses-alito.html [https://perma.cc/597K-U6UF] (arguing that Groff, Braidwood, and Hobby Lobby are wins for “conservative religion”).

  12. Cf. Carmella, supra note 1, at 597 (“Some liberals who were critical of Hobby Lobby may, on second thought, find the decision contains the seeds of a new growth of progressive free exercise claims.”); see also supra note 3 and accompanying text.

  13. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284 (2022) (“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”). See generally Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs, 142 S. Ct. 2228.

  14. See Complaint at 2–3, Pomerantz v. Florida, No. 154464609 (Fla. Cir. Ct. 2022), https://jayaramlaw.com/wp-content/uploads/2022/08/Complaint_1.pdf [https://perma.cc/3DVW-BDNZ]. As a Reform rabbi myself, I am personally, professionally, and theologically interested in how courts treat these claims.

  15. See, e.g., Complaint at 25–26, Anonymous Plaintiff 1 v. Individual Members of Med. Licensing Bd. of Ind., No. 49D01-2209-PL-031056 (Ind. Super. Ct., Sept. 8, 2022), https://www.aclu-in.org/sites/default/files/field_documents/complaint_to_file.pdf [https://perma.cc/R2UP-4HMR] (including Hoosier Jews for Choice as a named plaintiff); Order Granting Plaintiff’s Motion for Preliminary Injunction at 1, Anonymous Plaintiff 1 v. Individual Members of Med. Licensing Bd. of Ind., No. 49D01-2209-PL-031056 (Ind. Super. Ct., Dec. 2, 2022); Complaint at 9–10, Sobel v. Cameron, Case No. 22-CI-005189 (Ky. Cir. Ct. 2022), https://htv-prod-media.s3.amazonaws.com/files/sobel-complaint-against-cameron-1665079005.pdf [https://perma.cc/4ZFR-GHHJ]; Complaint at 2–3, Generation to Generation, Inc. v. Florida, Case No. 2022 CA 000980 (Fla. Cir. Ct. 2022), https://www.ldorvador.org/wp-content/uploads/2022/08/LDVDSecond-Amended-Complaint-Final-08092022.pdf [https://perma.cc/JBR2-7V6Z]; Complaint at 10, Satanic Temple v. Little, No. 1:22-cv-00411 (D. Idaho 2022), 2022 WL 4599129; Complaint at 9, Satanic Temple v. Holcomb, No. 1:22-cv-01859 (S.D. Ind. 2022), 2022 WL 4378551; Complaint at 13, Satanic Temple, Inc. v. Hellerstedt, No. 4:21-CV-00387 (S.D. Tex. 2021), 2021 WL 410748; Motion for Preliminary Injunction and Supporting Memorandum at 1, Planned Parenthood Assoc. v. Utah, No. 220903886 (Utah Dist. Ct. 2022), https://www.scribd.com/document/580534579/Planned-Parenthood-s-Motion-Memorandum-forPreliminary-Injunction [https://perma.cc/LN8L-5FM2]; Complaint at 4, Johnson v. Wyoming, No. 18732 (Wy. Dist. Ct. 2022), https://wyofile.com/wp-content/uploads/2022/07/Complaint-3.pdf [https://perma.cc/WXK8-JG5Y]; Petition for Injunctive and Declaratory Relief at 8–9, Blackmon v. Missouri, No. 2322-CC00120 (Mo. Cir. Ct. Jan. 19, 2023); see also Law, Rights, and Religion Project, A Religious Right to Abortion: Legal History & Analysis 15–24, Columbia U. (Aug. 2022), https://lawrightsreligion.law.columbia.edu/sites/default/files/content/LRRP Religious Liberty %26 Abortion Rights memo.pdf [https://perma.cc/RMV5-449H] (collecting cases raising free exercise complaints against abortion bans); Pam Belluck, Religious Freedom Arguments Underpin Wave of Challenges to Abortion Bans, NY Times (July 5, 2023), https://www.nytimes.com/2023/06/28/health/abortion-religious-freedom.html [https://perma.cc/8NKP-JRXX] (“For years, conservative Christians have used the principle of religious freedom to prevail in legal battles on issues like contraceptive insurance mandates and pandemic restrictions. Now, abortion rights supporters are employing that argument to challenge one of the right’s most prized accomplishments: state bans on abortion.”).

  16. See generally Olivia Roat, Note, Free-Exercise Arguments for the Right to Abortion: Reimagining the Relationship Between Religion and Reproductive Rights, 29(1) UCLA J. Gender & L. 1 (2022). Several faith traditions believe in reproductive choice as a matter of faith, and many religions supported such a right before Roe v. Wade protected it in 1973. Id. at 10–11.

  17. Id. at 12–14 (first quoting Evangelical Lutheran Church in America, A Social Statement on Abortion 2 (1991), https://download.elca.org/ELCA Resource Repository/AbortionSS.pdf [https://perma.cc/B7HJ-VAFL]; then quoting Advocate for Gender Equity, Including Reproductive Rights, in Healthcare, Archives Episcopal Church, https://www.episcopalarchives.org/cgi-bin/acts/acts_resolution.pl?resolution=2018-D032 [https://perma.cc/8LQX-59LQ] (last visited Nov. 18, 2023); and then quoting New Campaign: Catholics Support Public Funding for Abortion in Good Faith, Catholics for Choice, https://www.ingoodfaith.us [https://perma.cc/JU5F-2AUU] (last visited Nov. 18, 2023)).

  18. Id. at 14–15 (quoting RCRC Statement on Alabama Abortion Ban, Religious Coalition for Reproductive Choice (May 15, 2019), https://rcrc.org/37090--2 [https://perma.cc/WF62-KMGB]).

  19. Id. at 20.

  20. Id. This notion of “coerced childbirth” will be important to the discussion of affirmative and refusal claims, infra Part III.

  21. Roat, supra note 16, at 25–26 (quoting Lauren Barbato, Faithful Providers, Conscience Mag. (Dec. 12, 2019), https://www.catholicsforchoice.org/resource-library/faithful-providers/ [https://perma.cc/4YU4-8CWQ]).

  22. Id. at 33.

  23. Id. at 34.

  24. Id. at 43–44 (first citing Abramowicz v. Lefkowitz, 305 F. Supp. 1030 (S.D.N.Y 1969); then citing Women v. Connecticut, 342 F. Supp. 800 (D. Conn. 1972)); see also Landreth v. Hopkins, 331 F. Supp. 920, 921–22, 924 (N.D. Fla. 1971) (plaintiffs claimed that a state law banning advising about abortion violated their free exercise rights); Watkins v. Mercy Med. Ctr., 364 F. Supp. 799, 800 (D. Idaho 1973) (a physician at a Catholic hospital made a free exercise claim when denied admitting privileges for refusing to comply with the hospital’s ban on abortion). Both latter cases were dismissed on procedural grounds. Roat, supra note 16, at 44–45.

  25. See History, Religious Coal. for Reprod. Choice, https://rcrc.org/history/ [https://perma.cc/4YHX-LUFS] (last visited Mar. 15, 2023); see also Sepper, supra note 3 (manuscript at 6–7).

  26. The choice to include a section on Jewish views of abortion may betray some skepticism about the Court’s historical commitment to a limited inquiry into sincerity of religious belief. The Court has generally eschewed investigating the sincerity or even accuracy of a religious claimant’s belief. See, e.g., W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”); Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976) (stating a “general rule that religious controversies are not the propriety of a civil court inquiry”); Emp. Div., Dep’t of Hum. Res. of Ore. v. Smith, 494 U.S. 872, 887 (1990) (“[I]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.” (quoting Hernandez v. Commissioner, 490 U.S. 680, 699 (1989)); cf. 42 U.S.C. § 2000cc-5(7)(A) (“The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”).

  27. Emily Langowitz, In Our Bodies to Do It: A Jewish Feminist Theology of Reproductive Choice 13 (Jan. 26, 2017) (Rabbinic Ordination Thesis, Hebrew Union College-Jewish Institute of Religion) (on file with the Klau Library, Hebrew Union College-Jewish Institute of Religion) (on file with author).

  28. Exodus 21, 22–25 (The Contemporary Torah, JPS, 2006) (alteration in original) (accessed online at https://www.sefaria.org/Exodus.21.22-25?lang=en&aliyot=0 [https://perma.cc/AEU6-A38X]). Note, however, as Langowitz does, that the Hebrew of this passage is ambiguous. See Langowitz, supra note 27, at 13 n.10. Note, also, that some Christian commentators interpret this passage radically differently, based in part on the Septuagint (Greek Bible) translation. See, e.g., Francis J. Beckwith, Brave New Bible: A Reply to the Moderate Evangelical Position on Abortion, 33 J. Evangelical Theological Soc’y 489, 495–96 (1990); see also Danya Ruttenberg & Katey Zeh, An Ancient Mistranslation Is Now Helping to Threaten Abortion Rights, Wash. Post (Oct. 12, 2021, 6:00 AM), https://www.washingtonpost.com/outlook/2021/10/12/abortion-torah-translation/ [https://perma.cc/3TTU-REKB].

  29. Langowitz, supra note 27, at 14.

  30. Id. at 13–14.

  31. Babylonian Talmud, Yevamot 69b (accessed online at https://www.sefaria.org/Yevamot.69b.10?lang=bi [https://perma.cc/V7W5-7SF2]).

  32. Mishnah Ohalot 7:6 (second alteration in original) (accessed online at https://www.sefaria.org/Mishnah_Oholot.7.6?lang=bi [https://perma.cc/9GMN-4L6T]); see also Joshua R. S. Fixler & Emily Langowitz, Stricken from the Text: Sacred Stories of Reproductive Justice, in Social Justice Torah Commentary 105, 106 (Barry Block ed., 2021).

  33. For more in-depth treatment, see generally Langowitz, supra note 27; Fixler & Langowitz, supra note 32; Ronit Irshai, Fertility and Jewish Law: Feminist Perspectives on Orthodox Responsa Literature (Joel A. Linsider trans., 2012); Daniel Schiff, Abortion in Judaism (2002); Mark Washofsky, Response: Abortion, Halacha, and Reform Judaism, 28 J. Reform Judaism, Fall 1981; J. David Bleich, Abortion in Halakhic Literature, 10 Tradition: J. Orthodox Thought 72 (1968); Tomas J. Silber, Abortion: A Jewish View, 19 J. Religion & Health 231 (1980); Daniel B. Sinclair, The Legal Basis for the Prohibition on Abortion in Jewish Law, 15 Isr. L. Rev. 109 (1980); Y. Michael Barilan, Her Pain Prevails and Her Judgment Respected—Abortion in Judaism, 25 J.L. & Religion 97 (2009); Danya Ruttenberg, Why Are Jews So Pro-Choice?, Forward (Jan. 30, 2018), https://forward.com/opinion/393168/why-are-jews-so-pro-choice/ [https://perma.cc/KP7E-F86E].

  34. See Fixler & Langowitz, supra note 32, at 107. This binary is admittedly reductive and dismissive of nuances, but it helps set up a distinction between when religion mandates abortion and when religion permits it, which becomes legally significant below, infra Section III.B.

  35. Fixler & Langowitz, supra note 32, at 110 n.4.

  36. Id. at 106, 110 n.4.

  37. David H. Schraub, Liberal Jews and Religious Liberty, 98 N.Y.U. L. Rev. (forthcoming 2023) (manuscript at 22) (emphasis added) (internal quotation marks and modifications omitted) (quoting Bleich, supra note 33, at 87).

  38. See, e.g., Langowitz, supra note 27, at 50–52; see also Reproductive Rights, Union for Reform Judaism (1990), https://urj.org/what-we-believe/resolutions/reproductive-rights [https://perma.cc/SZ64-KAAC] (last visited Feb. 10, 2023) (stating that the Reform Jewish Movement “has long been committed to the right of a woman to choose an abortion”); Abortion: Digests of Resolutions Adopted by the Central Conference of American Rabbis Between 1889 and 1974, Cent. Conf. Am. Rabbis, https://www.ccarnet.org/ccar-resolutions/abortion-1889-1972/ [https://perma.cc/PR96-S6QW] (last visited Feb. 10, 2023) (recognizing as “religiously valid” legislation that “recognizes the preservation of a mother’s emotional health to be as important as her physical well-being” and urging the “broad liberalization of abortion laws in the various states”). But see infra notes 97–100 and accompanying text (suggesting that Reform Judaism’s duty of freedom of conscience may elevate permission into obligation by way of the pregnant woman’s autonomy and free choice).

  39. Religious Freedom Restoration Act, 42 U.S.C. § 2000bb. Many of the free exercise complaints filed so far, see supra notes 14–15, raise state RFRA claims, but this Note focuses on First Amendment free exercise doctrine, which overlaps but is not identical to RFRA analysis. See, e.g., infra note 54 and accompanying text. But see generally Blackman et al., Abortion and Religious Liberty, 27 Tex. Rev. L. & Pol. 441 (2023) (analyzing religious abortion claims under Indiana’s RFRA as distinct from First Amendment free exercise claims, for procedural and substantive reasons).

  40. Schraub, supra note 37 (manuscript at 2).

  41. Emp. Div., Dep’t of Hum. Res. of Ore. v. Smith, 494 U.S. 872 (1990).

  42. Schraub, supra note 37 (manuscript at 10).

  43. Id. (citing Smith, 494 U.S. at 878).

  44. Smith, 494 U.S. at 878; see also Schraub, supra note 37 (manuscript at 10 n.28) (citing a study showing no partisan difference in judges’ free exercise rulings 1996–2005). For a discussion of how this trend has reversed, see generally Zalman Rothschild, Free Exercise Partisanship, 107 Cornell L. Rev. 1067 (2022).

  45. See cases supra note 11.

  46. See Douglas Laycock, The Remnants of Free Exercise, Sup. Ct. Rev. 1990, at 1, 49; Richard Schragger & Micah Schwartzman, Religious Freedom and Abortion, 108 Iowa L. Rev. 2299, 2318–19, 2322–23, 2328 (2023); Corbin, supra note 3, at 483–85. See generally Andrew Koppelman, The Increasingly Dangerous Variants of the “Most-Favored-Nation” Theory of Religious Liberty, 108 Iowa L. Rev. 2237 (2023).

  47. Schragger & Schwartzman, supra note 46, at 2319.

  48. Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021); see also Koppleman, supra note 46, at 2241.

  49. See Koppelman, supra note 46, at 2253.

  50. Id. at 2283. Koppelman traces this variant through, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (“[A] law cannot be regarded as protecting an interest ‘of the highest order’ . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” (Scalia, J., concurring in part and concurring in judgment) (alteration in original)), and Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1882 (2021) (“The creation of a system of exceptions under the contract undermines the City’s contention that its non-discrimination policies can brook no departures.”).

  51. Koppelman, supra note 46, at 2284–85 (ascribing the full development of this variant to Justice Alito) (citing Little Sisters of the Poor v. Pennsylvania, 140 S. Ct. 2367, 2392 (2020) (Alito, J., joined by Gorsuch, J., concurring)). Schragger and Schwartzman make the same point under Tandon about abortion bans specifically:

    Secular exceptions . . . ought to trigger the requirement that comparable religious claims also receive accommodations. The state may have secular reasons for permitting abortion—for example, in cases of rape, incest, or to protect the life of the pregnant person—but, at least as the Court’s conservative majority has articulated its doctrine of general applicability, those exceptions will undermine the state’s asserted interest in protecting fetal life in the same manner as would abortions that are motivated on religious grounds.

    Schragger & Schwartzman, supra note 46, at 2321–22.

  52. See, e.g., Schraub, supra note 37 (manuscript at 17–18) (collecting and summarizing district court cases in which the most favored nation theory allowed judges to enjoin laws and policies for any variation between religious and nonreligious procedures or for the recognition of any secular exceptions).

  53. See discussion infra Section IV; see also Schragger & Schwartzman, supra note 46, at 2322 & n.133 (citing Jane Doe No. 1 v. Att’y Gen. of Ind., No. 1:20-cv-03247, 2022 WL 5237133, at *8–9 (S.D. Ind. Sept. 26, 2022) (applying this logic of exceptions to a fetal burial law, which “treated secular conduct more favorably than comparable religious conduct” and failed strict scrutiny), rev’d Doe v. Rokita, 54 F.4th 518 (7th Cir. 2022)).

  54. 42 U.S.C. § 2000bb-1(a)–(b); see also Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 705 (2014) (“RFRA prohibits the Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability unless the Government demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” (alterations in original) (internal quotation marks omitted) (quoting 42 U.S.C. § 2000bb-1(a)–(b))).

  55. See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284 (2022) (overturning Roe’s recognition of a constitutional right to abortion).

  56. See, e.g., After Roe Fell: Abortion Laws by State, Ctr. for Reprod. Rts., https://reproductiverights.org/maps/abortion-laws-by-state/ [https://perma.cc/YE3V-D6TL] (last visited Feb. 10, 2023).

  57. See cases supra note 15 and text accompanying notes 14–15; see supra note 7 and accompanying text.

  58. See, e.g., Michael A. Helfand, Identifying Substantial Burdens, 2016 U. Ill. L. Rev. 1771, 1776–77.

  59. Carmella, supra note 1, at 540–43.

  60. Id. at 540–41.

  61. Id. at 541.

  62. The question of whether courts care that the religion mandates or merely permits a particular act is addressed below, infra Section III.B.

  63. Carmella, supra note 1, at 541.

  64. Id. at 543.

    For refusal claims, the law requires an action of the religious party. For affirmative claims, the religion propels the action that the law restrains. In the former, the government is the assertive party. In the latter, the religious party is assertive. Note that either type of claim can be brought against laws that are generally applicable and facially neutral. A religious party might refuse to follow a neutral general requirement or might challenge a neutral general restraint on its religious exercise.

    Id. at 541 n.36.

  65. Id. at 541.

  66. Id. at 597–98, 600–02, 605–06.

  67. Id. at 551–55.

  68. Schragger & Schwartzman, supra note 46, at 2335.

  69. Carmella, supra note 1, at 582.

  70. See id. at 582–83; see, e.g., Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1723 (2018) (a state law and agency directed a bakery owner to serve a same-sex couple); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 688–90 (2014) (a federal law and agency directed a corporation to provide contraceptive coverage); see also supra note 67 and examples in accompanying text. But see successful Christian affirmative claims in, e.g., Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021) (detailing how a state’s pandemic restrictions directed churches not to worship in person in certain circumstances) and Kennedy v. Bremerton School District, 142 S. Ct. 2407, 2415 (2022) (detailing how a public school district directed a football coach not to pray on the field near game time). On the other hand, Tandon and Kennedy show the fluidity of the affirmative/refusal paradigm and the problem of negative and positive religious obligations. See infra note 75 and accompanying text.

  71. Carmella, supra note 1, at 582–84, 587.

  72. Id. at 584.

  73. Id. at 592 (citing Kara Loewentheil, The Satanic Temple, Scott Walker, and Contraception: A Partial Account of Hobby Lobby’s Implications for State Law, 9 Harv. L. & Pol’y Rev. 89, 123 (2015) (arguing for symmetry in recognizing free exercise claims after Hobby Lobby)).

  74. Supra note 7 and accompanying text; see also supra note 16 and accompanying text.

  75. See, e.g., Jewish Concepts: Mitzvot, Jewish Virtual Libr., https://www.jewishvirtuallibrary.org/mitzvot [https://perma.cc/73TB-UAT6] (“Some of the mitzvot [commandments] overlap; for example, it is a positive commandment to rest on the Sabbath and a negative commandment not to do work on the Sabbath.”) (last visited Mar. 15, 2023). This issue is related to the legal problem of commission vs. omission in, e.g., ethics, criminal law, and torts.

  76. See supra note 20 and accompanying text.

  77. Transcript of Oral Argument at 56–57, Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (No.19-1392).

  78. Id. The Respondents’ counsel replied by noting the unique risks and demands of pregnancy and childbirth, as distinct from motherhood. Id. at 57–58.

  79. See supra note 11.

  80. Shragger & Schwartzman, supra note 46, at 2302.

  81. This scenario may not be merely hypothetical much longer. See Mary Ziegler, Why Exceptions for the Life of the Mother Have Disappeared, Atlantic (July 25, 2022), https://www.theatlantic.com/ideas/archive/2022/07/abortion-ban-life-of-the-mother-exception/670582/ [https://perma.cc/U85C-RFE5].

  82. See supra Section II.B.

  83. Shragger & Schwartzman, supra note 46, at 2335–36.

  84. Carmella, supra note 1, at 584.

  85. See Corbin, supra note 3, at 487, 509 (“[T]he current Supreme Court . . . supports Christian religious rights, particularly those of conservative Christians . . . .”); cf. Schraub, supra note 37 (manuscript at 42–49, 52–53) (arguing that Christian supersessionism is at work in the denigration and denial of nonconservative Jewish religious claims).

  86. See Roat, supra note 16, at 63–64 (noting that during the legislative hearings about RFRA, some anti-abortion advocates “wanted to limit RFRA to the ‘compelled’ standard based on their idea that few religions compelled people to have an abortion as a matter of religious obligation.” In addition, a leader of the National Right to Life Committee argued, based on Supreme Court precedent, that a pregnant plaintiff would have to be “compelled by religious duty” to assert a free exercise claim to abortion).

  87. Michael W. McConnell, Religious Freedom at a Crossroads, 59 Univ. Chi. L. Rev. 115, 174 (1992); see also Schraub, supra note 37 (manuscript at 18–19).

  88. Carmella, supra note 1, at 584.

  89. See, e.g., Blackman et al., supra note 39, at 464–66.

  90. Josh Blackman, Tentative Thoughts on the Jewish Claim to a “Religious Abortion”, Volokh Conspiracy (June 20, 2022, 5:04 PM), https://reason.com/volokh/2022/06/20/tentative-thoughts-on-the-jewish-claim-to-a-religious-abortion [https://perma.cc/PY9E-QMMK] (arguing, with regard to Reform Jews, that “to claim that their religious exercise is substantially burdened, I think there has to be some broader showing that the religious belief is obligatory in nature. The belief can’t simply be aspirational . . . . The legal concept of a ‘substantial burden,’ which was developed in the context of Christian faiths, does not neatly map onto a Jewish faith that does not actually impose any requirements on congregants, but instead only offers aspirational principles.”); see also Dahlia Lithwick, Which Religion Counts in America, Slate (Mar. 9, 2023, 2:57 PM), https://slate.com/news-and-politics/2023/03/abortion-whose-religious-objection-counts.html [https://perma.cc/L8DC-J3L7] (citing Brief for the Becket Fund for Religious Liberty et al. as Amici Curiae Supporting Appellants, Individual Members of Med. Licensing Bd. of Ind. v. Anonymous Plaintiff 1 (Ind. Ct. App. 2023) (No. 22A-PL-02938), https://becketnewsite.s3.amazonaws.com/20230118184008/Individual-Members-v.-Anonymous-Planitiff-Amicus-Brief.pdf [https://perma.cc/BLV3-SPKG]) (discussing the Indiana religious-abortion case, where an opposition brief argued that the Jewish plaintiffs’ “beliefs are insincere”); cf. Blackman et al., supra note 39, at 465 (arguing that judges should question the sincerity a religion whose principles are “entirely ethical” and devoid of ritual demands).

  91. See, e.g., Dahlia Lithwick & Micah Schwartzman, Is the Religious Liberty Tent Big Enough to Include the Religious Commitments of Jews?, Slate (June 22, 2022, 3:48 PM), https://slate.com/news-and-politics/2022/06/do-proponents-of-religious-liberty-really-intend-to-dispute-the-religious-commitments-of-jews.html [https://perma.cc/VP88-RV42] (“As practicing Jews, we could pause here to comment on how disrespectful and disparaging it is when legal pundits describe our religious commitments as fickle and shifting by the moment.”); Schragger & Schwartzman, supra note 46, at 2334–35 (“[T]he Supreme Court has never held that a claimant must assert a religious obligation to show a substantial burden . . . .”); Steve Vladeck (@steve_vladeck), Twitter (Jun 20, 2022, 9:12 PM), https://twitter.com/steve_vladeck/status/1539068680771969024 [https://perma.cc/N33E-VQAJ] (“[Blackman]'s central (ugly) thesis is that reform Jews *can’t* claim free exercise violations if state laws burden practices that are available to—but not required by—their faith. That’s not how we define religious exercise in *any* other context.”).

  92. See, e.g., Reform Judaism: The Pittsburgh Platform (November 1885), Jewish Virtual Libr., https://www.jewishvirtuallibrary.org/the-pittsburgh-platform https://perma.cc/B3A3-T2R5 (last visited Feb. 10, 2023) (“We hold that all such Mosaic and rabbinical laws as regulate diet, priestly purity, and dress originated in ages and under the influence of ideas entirely foreign to our present mental and spiritual state. They fail to impress the modern Jew with a spirit of priestly holiness; their observance in our days is apt rather to obstruct than to further modern spiritual elevation.”); see also Michael A. Meyer, Response to Modernity: A History of the Reform Movement in Judaism, in Studies in Jewish History 268 (Jehuda Reinharz ed., 1988) (noting that early Reform Jews considered “the Mosaic legislation merely a means for the Jews’ early education to their religious task” and, thus, no longer binding. “But even in the present, the moral laws remain binding . . . .”).

  93. Traditional Jewish law.

  94. See The Pittsburgh Platform, supra note 92 (calling for “the establishment of reign of truth and righteousness” and affirming a “duty to participate in the great task of modern times, to solve, on the basis of justice and righteousness,” social evils (emphasis added)); Meyer, supra note 92, at 268 (“But even in the present, the moral laws remain binding”); see also A Statement of Principles for Reform Judaism, Cent. Conf. of Am. Rabbis, https://www.ccarnet.org/rabbinic-voice/platforms/article-statement-principles-reform-judaism/ [https://perma.cc/YAJ4-XA7V] (last visited Feb. 10, 2023) (reaffirming a duty to “fulfill the highest ethical mandates in our relationships with others and with all of God’s creation” and proclaiming that “[w]e are obligated to pursue . . . justice and righteousness” and address social ills (emphasis added)).

  95. See Serbian E. Orthodox Diocese v. Milivoievich, 426 U.S. 696, 713 (1976).

  96. Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 887 (1990).

  97. Commentary on the Principles for Reform Judaism, Cent. Conf. of Am. Rabbis (Oct. 27, 2004), https://www.ccarnet.org/rabbinic-voice/platforms/article-commentary-principles-reform-judaism/ [https://perma.cc/KN9R-MW5Q] (listing “informed choice” and “autonomy” as “the watchwords of Reform Judaism”); see also supra Section II.A.

  98. Schraub, supra note 37 (manuscript at 25).

  99. Eugene B. Borowitz, The Jewish Self, in Contemporary Jewish Ethics and Morality 106, 108 (Elliot N. Dorff & Louis E. Newman eds., 1995); see also Langowitz, supra note 27, at 71.

  100. Eugene B. Borowitz, Renewing the Covenant: A Theology for the Postmodern Jew 288 (1991); see also Langowitz, supra note 27, at 74.

  101. Shragger & Schwartzman, supra note 46, at 2336.

  102. See Sepper, supra note 3 (manuscript at 20–21, 26) (critiquing the narrowing of free exercise doctrine to “rite” and “ritual”); cf. Town of Greece v. Galloway, 572 U.S. 565, 569–70 (2014) (finding constitutional the inclusion of Christian invocations at town council meetings).

  103. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2415, 2418, 2422, 2433 (2022) (internal quotation marks omitted).

  104. Although it’s beyond the scope of this inquiry, some commentators claimed that the Kennedy Court distorted the facts of the case to reach their desired conclusion. See, e.g., Ian Millhiser, The Supreme Court Hands the Religious Right a Big Victory by Lying About the Facts of a Case, Vox (June 27, 2022, 1:52 PM), https://www.vox.com/2022/6/27/23184848/supreme-court-kennedy-bremerton-school-football-coach-prayer-neil-gorsuch [https://perma.cc/4697-QCDD]. The dissent agreed. Kennedy, 142 S. Ct. at 2435 (“As the majority tells it, Kennedy, a coach for the District’s football program, ‘lost his job’ for ‘pray[ing] quietly while his students were otherwise occupied.’ The record before us, however, tells a different story.” (quoting Kennedy, 142 S. Ct. at 2415) (alteration in original) (internal citation omitted)) (Sotomayor, J., joined by Breyer and Kagan, JJ., dissenting).

  105. Kennedy, 142 S. Ct. at 2421 (majority opinion) (quoting Emp. Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 877 (1990)). By including both “performance” and “abstention,” this formulation seems to signal that the Court won’t discriminate between affirmative and refusal claims.

  106. Cf. id. at 2422 (“Mr. Kennedy’s religious beliefs do not require [him] to lead any prayer . . . involving students.” (alterations in original) (internal quotation marks omitted)).

  107. Id. at 2438, 2450–52 (“The District stated that it had no objection to Kennedy returning to the stadium when he was off duty to pray at the 50-yard line, nor with Kennedy praying while on duty if it did not interfere with his job duties or suggest the District’s endorsement of religion.” (Sotomayor, J., joined by Breyer and Kagan, JJ., dissenting)).

  108. Carmella, supra note 1, at 584.

  109. Kennedy, 142 S. Ct. at 2433 (majority opinion).

  110. See id. at 2415–17, 2433.

  111. See id. at 2417–18, 2433; id. at 2439 (Sotomayor, J., joined by Breyer and Kagan, JJ., dissenting).

  112. Id. at 2438 (“The District stated that it had no objection to Kennedy returning to the stadium when he was off duty to pray at the 50-yard line, nor with Kennedy praying while on duty if it did not interfere with his job duties or suggest the District’s endorsement of religion.” (Sotomayor, J., joined by Breyer and Kagan, JJ., dissenting)).

  113. See Carmella, supra note 1, at 580–84.

  114. Kennedy, 142 S. Ct. at 2438, 2446, 2453 (Sotomayor, J., joined by Breyer and Kagan, JJ., dissenting).

  115. Id. at 2415–16, 2430–31, 2433 (majority opinion).

  116. Id. at 2421; see supra notes 103–04 and accompanying text.

  117. See Kennedy, 142 S. Ct. at 2421 (“Now before us, Mr. Kennedy renews his argument that the District’s conduct violated both the Free Exercise and Free Speech Clauses of the First Amendment. These Clauses work in tandem. Where the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities.”).

  118. Id. at 2431. Note that the uniquely Jewish example—wearing a yarmulke—is distinct from the others: it is expressive religious clothing that one wears not only while praying but also while simply going about one’s day. It is a strange example here because—unlike prayer—no observer would interpret wearing a yarmulke as an invitation to join in public worship, which was precisely at issue here. Perhaps this non-Christian example is Justice Gorsuch’s attempt to infuse the opinion with a modicum of religious pluralism. Otherwise, his message that “learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry’” comes across as a Christian justice’s tone-deaf lecture to non-Christian minorities on the importance of tolerating public Christian prayer. Id. at 2430 (quoting Lee v. Weisman, 505 U.S. 577, 590 (1992)); see also Town of Greece v. Galloway, 572 U.S. 565, 584 (2014) (suggesting that Christian prayers like those offered at public town meetings are part of the nation’s history of striving to unite “people of many faiths . . . in a community of tolerance and devotion”).

  119. Kennedy, 142 S. Ct. at 2421.

  120. Id. at 2432–33.

  121. Tandon v. Newsom, 141 S. Ct. 1294 (2021); see also Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per curiam). But see sources supra notes 70, 75 and accompanying text.

  122. See supra notes 106–07, 112 and accompanying text.

  123. See Carmella, supra note 1, at 578–79 (collecting cases in which churches seeking exceptions from local ordinances to serve the unhoused and the courts who heard their claims referred to serving the poor as “a form of worship akin to prayer” to which there is “no higher act of worship for a Christian” (first quoting W. Presbyterian Church v. Bd. of Zoning Adjustment of D.C., 862 F. Supp. 538, 547 (D.D.C. 1994); then quoting Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 575 (2d Cir. 2002))).

  124. This is in part because these claims tend to arise as affirmative claims. See supra note 66 and accompanying text.

  125. Carmella, supra note 1, at 600 (quoting Brief of and by Professors of Religious Liberty as Amicus Curiae in Support of Defendant’s Motion to Dismiss at 6 n.2, 13, United States v. Warren, No. CR-18-00223-001-TUC-RCC, 2018 WL 4403753 (D. Ariz. Sept. 17, 2018)).

  126. “At no time during the Defendant’s testimony did he claim that his religious beliefs necessitated he aid undocumented migrants . . . .” United States v. Warren, No. CR 18-00223-TUC-RCC(BPV), 2018 WL 5257807, at *2–3 (D. Ariz. May 31, 2018); see also Carmella, supra note 1, at 609–14 (collecting cases where judges denied a claim of religious exercise in “political” activity scenarios).

  127. The Martin Luther King, Jr. Rsch. & Educ. Inst., Heschel, Abraham Joshua, Stanford Univ., https://kinginstitute.stanford.edu/encyclopedia/heschel-abraham-joshua [https://perma.cc/B6N2-RU23] (last visited Feb. 12, 2023).

  128. Id. (quoting Susanna Heschel, Theological Affinities in the Writings of Abraham Joshua Heschel and Martin Luther King, Jr., in Black Zion 168, 175 (Yvonne Chireau & Nathaniel Deutsch eds., 2000)).

  129. See, e.g., Abraham J. Heschel, The Prophets 19 (First Perennial Classics ed. 2001) (“Above all, the prophets remind us of the moral state of a people: Few are guilty, but all are responsible.”); id. at 260 (“The distinction of the prophets was in their remorseless unveiling of injustice and oppression, in their comprehension of social, political, and religious evils. They were not concerned with the definition, but with the predicament, of justice, with the fact that those called upon to apply it defied it.”); id. at 272 (“Justice, people seem to agree, is a principle, a norm, an ideal of the highest importance. We all insist that it ought to be—but it may not be. In the eyes of the prophets, justice is more than an idea or a norm: justice is charged with the omnipotence of God. What ought to be, shall be!”); see also A. James Rudin, How Heschel and King Bonded over the Hebrew Prophets, Religion News Serv. (Feb. 11, 2021), https://religionnews.com/2021/02/11/how-heschel-and-king-bonded-over-the-hebrew-prophets/ https://perma.cc/5Y5X-L9ZJ.

  130. See, e.g., A Statement of Principles for Reform Judaism, Cent. Conf. of Am. Rabbis, https://www.ccarnet.org/rabbinic-voice/platforms/article-statement-principles-reform-judaism [https://perma.cc/S22A-WP82] (last visited Feb. 10, 2023) (“We bring Torah into the world when we strive to fulfill the highest ethical mandates in our relationships with others and with all of God’s creation . . . . [W]e reaffirm social action and social justice as a central prophetic focus of traditional Reform Jewish belief and practice . . . . These acts bring us closer to fulfilling the prophetic call to translate the words of Torah into the works of our hands.”).

  131. See id.; see also supra notes 92–94 and accompanying text.

  132. See, e.g., Andrés Spokoiny, Tikkun Olam: A Defense and a Critique, Jewish Funders Network (Oct. 17, 2018), https://www.jfunders.org/tikkun_olam_a_defense_and_a_critique [https://perma.cc/3L9R-RWPB].

  133. See, e.g., URJ Resolution on Free and Accessible Elections, Union for Reform Judaism, https://urj.org/what-we-believe/resolutions/urj-resolution-free-and-accessible-elections [https://perma.cc/SSE5-JNYP] (linking voting rights to texts from the Talmud and medieval Jewish law) (last visited Feb. 12, 2023).

  134. United States v. Hoffman, No. MJ-17-0339-TUC-BGM, 2018 WL 2464115, at *3 (D. Ariz. June 1, 2018) (alterations in original) (quoting United States v. Christie, 825 F.3d 1048, 1056 (9th Cir. 2016)); see also Sepper, supra note 3 (manuscript at 27) (warning of arguments that seek to discredit religious liberty as “a front for political ideology”); cf. Blackman et al., supra note 39, at 463, 465 (suggesting that some women are insincere in their religious beliefs who adopt “religious beliefs in an opportunistic fashion,” and comparing them to draft dodgers during the Vietnam War who “suddenly discovered a new pacifist faith”).

  135. Cf. Sepper, supra note 3 (manuscript at 14, 19) (noting that baking a cake, offering health insurance, and running a for-profit corporation aren’t obviously religious activities but have been treated as religious by the Supreme Court). Hobby Lobby is perhaps the most glaring counterexample to my assertion about the Court’s ritual preferentialism. Denying contraceptive coverage had no ritual component whatsoever (not to mention the awkwardness of a corporation claiming religious exercise). See generally James D. Nelson, Conscience, Incorporated, 2013 Mich. St. L. Rev. 1565. A skeptic might even argue that Hobby Lobby’s motivation in avoiding the federal mandate to provide contraceptive coverage was fundamentally political, and irreligious—the same critique leveled at Reform Jews raising claims with public policy implications. But the claimant presented a refusal claim aligned with conservative Christian ideology, and it succeeded. Note also that Hobby Lobby was decided under RFRA’s compelling interest standard, not the First Amendment. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 701, 735–36 (2014) (“The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim . . . .”).

  136. This is a corollary to Carmella’s argument that conservative refusal claims fare better than liberal affirmative claims and to Shragger & Schwartzman’s assertion that the Court operates a regime of religious preferentialism. See Carmella, supra note 1, at 541–44; supra note 101 and accompanying text.

  137. See, e.g., Martin Luther King, Jr., Letter from a Birmingham Jail (Apr. 16, 1963) (reproduced by the Bill of Rights Institute), https://billofrightsinstitute.org/primary-sources/letter-from-birmingham-jail [https://perma.cc/7F7S-TMAQ] (observing, critically, “In the midst of a mighty struggle to rid our nation of racial and economic injustice, I have heard so many ministers say, ‘Those are social issues with which the Gospel has no real concern’”). See generally Michael Walzer, Exodus and Revolution (1985) (describing how the Exodus narrative inspired and structured American social movements, including the Civil Rights Movement).

  138. Cf. Johnny Rex Buckles, The Constitutionality of the Monkey Wrench: Exploring the Case for Intelligent Design, 59 Okla. L.R. 527, 561–65 (2006) (citing Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O’Connor, J., concurring) (observing the nonsense of finding a violation of the Establishment Clause when the state criminalizes murder merely because the Bible forbids murder)) (arguing in the context of whether intelligent design theory is “inherently religious” that “[a] premise or conclusion held in two distinct disciplines does not result in one discipline’s being subsumed within the other”). Buckles’s examples are illustrative. A criminal psychologist and a Catholic priest may share a belief in a juvenile offender’s potential for rehabilitation, but that overlapping belief doesn’t make the psychologist Catholic, or the priest a psychologist. Id. at 564. Similarly, a doctor and a rabbi may share an aversion to eating raw bacon, but that common belief doesn’t mean that the doctor is motivated by Judaism nor that the rabbi is motivated by medicine. Id.

    On the other hand, some scholarship suggests that political ideology drives religious commitments, not the other way around. See, e.g., Philip S. Gorski & Samuel L. Perry, The Flag + the Cross: White Christian Nationalism and the Threat to American Democracy 63–64, 68–69, 85 (2022); Linda Greenhouse, Victimhood and Vengeance, N.Y. Rev. of Books (Feb. 9, 2023), https://www.nybooks.com/articles/2023/02/09/victimhood-and-vengeance-the-flag-and-the-cross/ [https://perma.cc/CQW2-P6K4] (reviewing The Flag and the Cross and two other books about American Christianity and secularism).

  139. But see Corbin, supra note 3, at 510 (“[T]he current Supreme Court is unlikely to let itself be cornered into applying its own doctrine to reach results it does not like.”).

  140. See supra notes 14–15 and accompanying text.

  141. Supra Section II.B.

  142. This hypothetical is designed to avoid the critique that liberal religions’ lack of “obligation” renders them legally incapable of showing a substantial burden of religious exercise. I think that critique is wrong, but this thought experiment brings the legal conundrum into stark relief without allowing the fallback argument of liberals’ lack of religious obligation and therefore sincerity and substantial burden.

  143. See Corbin, supra note 3, at 496–97, 506 (“Under existing precedent—precedent that the current Justices on the Supreme Court created—the Jewish challenges should succeed.”).

  144. See supra Section III.A.

  145. See supra Section III.B.

  146. See Schraub, supra note 37 (manuscript at 24–25) (arguing that a pregnant woman’s “freedom to choose is what is religiously compelled”).

  147. See supra Section II.C.

  148. See Corbin, supra note 3, at 501 (noting that “religious challenges to abortion bans with a health exception or rape exception should have no trouble meeting the substantial burden requirement”); Sepper, supra note 3 (manuscript at 17) (“abortion prohibitions should fail strict scrutiny” because of the presence of exceptions).

  149. See Schragger & Schwartzman, supra note 46, at 2335–36, 2340 (collecting cases in which “conservatives” have benefitted from free exercise protection); Sepper, supra note 3 (manuscript at 50) (“Scholars widely predict that the Supreme Court will privilege some kinds of religious claims over others.”); Schraub, supra note 37 (manuscript at 19).

  150. See supra notes 83, 85, 149 and accompanying text. See also, e.g., Andrew Seidell, American Crusade: How the Supreme Court Is Weaponizing Religious Freedom 10–11 (2022).

  151. Schragger & Schwartzman, supra note 46, at 2335; see also Corbin, supra note 3, at 510 (“This Court will not hesitate to manipulate or change doctrine in order to obtain its desired outcome.”).

  152. See Schragger & Schwartzman, supra note 46, at 2325 (calling Smith “strategically useful” and arguing that the Court’s refusal to overturn Smith outright allows it the flexibility to wield Smith against certain religious claims it disfavors for any number of reasons).

  153. Cf. Roat, supra note 16, at 69 (describing how, during the RFRA hearings in the early 1990s, anti-abortion advocates and legislators assuaged concerns about religious people raising credible free exercise abortion claims by referring to the government’s ability to “assert a compelling interest in fetal life”).

  154. See, e.g., Corbin, supra note 3, at 510 (suggesting that courts could distinguish abortion from other free exercise claims because it “jeopardizes potential human life”); Sepper, supra note 3 (manuscript at 38) (connecting the Roe Court’s notion of a “compelling” interest in “potential life” at viability to the likelihood that today’s Court would find such an interest “beginning at fertilization”); Blackman et al., supra note 39, at 467–68 (arguing that “the government has a compelling interest to protect fetal life”); Sherry F. Colb, Are Religious Abortions Protected?, Verdict (June 7, 2022), https://verdict.justia.com/2022/06/07/are-religious-abortions-protected [https://perma.cc/R6Q8-H3JV] (asserting that “five and perhaps six of the Justices on the Court view abortion as murder”); cf. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2261 (2022) (“The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life.”).