First place: FFRF Legal Essay contest — Kalyn McDaniel
Diane and Stephen Uhl Memorial Essay Contest Winner
Hanged on the gallows that he prepared
By Kalyn Mizelle McDaniel
“So, they hanged Haman on the gallows that he had prepared for Mordecai.” Esther 7:10
Haman is a character in the Hebrew bible whose ascent to power is subversive, defined by shrouded tactics to pursue his political ambitions. Ultimately, he constructs gallows, the infrastructure necessary to accomplish his goal: the execution of his enemies.
His plot is under way, yet the tides turn. Haman falls from political favor. He is sent to be executed — ironically — utilizing the same mechanism of death he constructed and sought to weaponize.
Groups claiming to be the singular voice for religious liberty have, similarly, utilized the courts to treat religious liberty as a vehicle to justify myriad harms. These tactics, however, may have built the infrastructure necessary to invalidate laws restricting abortion based on the religious liberty interest of potential plaintiffs.
Restrictions and bans on abortion should be invalidated based on the free-exercise rights of potential plaintiffs because: (1) under states’ Religious Freedom Restoration Acts (RFRA), restrictions on abortion substantially burden religious practice and are, therefore, constitutionally suspect; (2) these laws are unable to withstand strict scrutiny analysis; and (3) these laws are suspect under the U.S. Constitution based on the Supreme Court’s adoption of the most favored nation theory of religious liberty.
State RFRA statutes emerged in response to the Supreme Court’s Employment Division v. Smith and City of Boerne v. Flores decisions. Before Smith, neutral laws that imposed even an incidental burden on religion were subject to heightened scrutiny. The court, in Smith, diverted from that precedent and narrowed the protection holding that, absent the intent to discriminate, neutral laws of general applicability that burdened religion were subject only to rational basis review.
In response, and with varying motivations, a diverse coalition emerged to support the passage of RFRA in Congress. As passed, RFRA applied to federal and state actions and imposed a pre-Smith test to trigger heightened scrutiny for free-exercise challenges. In Flores, though, the Supreme Court limited RFRA enforcement to the federal government. States soon responded by enacting their own, often more expansive, versions of RFRA. Advocates in the states have since pushed courts to issue rulings prioritizing majority religious beliefs by granting exceptions to anti-discrimination laws. Advocates for church-state separation have called for revising RFRA statutes. Still, RFRA has been used in ways that genuinely protect religious minorities, and the protection it affords does not exclude religious practices that require access to abortion care.
Most state RFRA laws were modeled on the federal version of the statute, which requires actions by the states that burden religion to pass the rigorous “strict scrutiny” standard. This means that the government may “substantially burden” the exercise of a person’s sincere religious belief only if it shows that the “application of the burden to the person” (1) furthers a “compelling government interest” and (2) is the “least restrictive means” of furthering that interest.
Potential plaintiffs have a strong case that laws limiting their ability to access, perform, or counsel about abortion substantially burden sincerely held religious beliefs. Lawsuits on these grounds have commenced in Florida, Indiana, Kentucky, Missouri, Utah and Wyoming. Since state RFRA statutes diverge in specific protective language, advocates should tailor challenges accordingly. Plaintiffs in Indiana have successfully proved that the state’s abortion bans “prevent or otherwise interfere with the ability of the plaintiffs . . . to obtain abortions as directed by their sincere religious beliefs.” Specifically, their religions (Judaism, Islam, Unitarian Universalism) direct them to obtain abortion care under a variety of circumstances, such as when a pregnancy jeopardizes the mental or physical health of the pregnant person without necessarily causing “serious risk of substantial and irreversible physical impairment of a major bodily function,” as the ban’s health exception would require. The Marion County Superior Court granted the Indiana plaintiffs’ preliminary injunction, blocking the ban from being enforced against the plaintiffs on Dec. 2, 2022.
Alternatively, in Missouri, the plaintiffs are clergy members and physicians. Their respective religions require them to counsel, perform and contemplate abortions with their patients and congregants. This religious practice, too, is substantially burdened, and advocates argue that the abortion ban violates Missouri’s RFRA by compelling conformity with a single religion’s practice.
Regardless of the specific right being burdened, anti-abortion advocates will question these beliefs’ sincerity and religious grounding. There is a long history of erasure by antiabortion advocates of the fact that faith motivates or even requires people to provide or obtain an abortion. The legislative history of RFRA reveals that anti-abortion groups opposed or attempted to modify RFRA because they feared it would create an independent statutory basis for the right to abortion. RFRA only passed when Planned Parenthood v. Casey codified privacy as the constitutional basis for abortion rights and assuaged the fears that the right would need to be grounded in free exercise. Accordingly, RFRA does not include proposed amendments that would have prevented the statute from protecting abortion.
Plaintiffs may have to overcome objections to the sincerity of their religious beliefs.
However, longstanding precedent prevents the government from examining the legitimacy of a sincere belief. While a religious view “might seem incredible, if not preposterous, to most people,” courts cannot enter the “forbidden domain” of attempting to interpret religious doctrine or discern the relative importance or centrality of a religious belief or practice. This analysis would improperly entangle the government with religion in violation of the First Amendment.
Under state RFRA statutes, laws burdening plaintiffs’ religious beliefs must pass strict scrutiny analysis. The court has gone so far as to recognize that strict scrutiny is often “strict in theory, but fatal in fact” regarding most laws of general applicability. Additionally, the form of strict scrutiny that the Supreme Court has recently used in recent free-exercise cases, Tandon v. Newsom and Fulton v. City of Philadelphia, is particularly aggressive and nearly impossible to satisfy: requiring compelling interest and narrow tailoring.
In Casey, the court recognized the state’s interest in “protecting fetal life or potential life,” which states will likely cite as the compelling interest necessitating abortion restrictions.
However, under Casey, the state’s interest in protecting potential life became compelling only in the third trimester. In Dobbs v. Jackson Women’s Health Organization, the court harshly criticized this standard but declined to, at that time, establish a standard that would replace the trimester approach. It is unlikely that the present court would recognize that the compelling interest is present from conception, given the missed opportunity to do just that in Dobbs.
Additionally, the compelling interest must be a secular one. The interest in protecting potential life from conception is inherently religious. The answer to the question of when life begins differs between people of different or no faith. It additionally serves as the foundation of central tenets of faith. Accordingly, adopting one particular faith’s conception of when life begins raises an Establishment Clause challenge.
Even if protecting potential life is deemed a compelling state interest, it is very unlikely that the state laws would survive the narrowly tailored prong of strict scrutiny. In Fulton, the court found that a Philadelphia statute conditioning its foster care referral relationship on an anti-discrimination agreement was not narrowly tailored since it theoretically allowed some exceptions. The unanimous decision stated that the question “is not whether the city has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS.”
Of the 17 states that have imposed more restrictive bans on abortion since the Dobbs decision, 12 have state RFRA statutes. Plaintiffs in the remaining five states may be able to challenge the statutes under the court’s newly adopted most favored nation theory of religious liberty. Based on Fulton, any law “so long as it could potentially exempt some secular activity, is not generally applicable” and is therefore subject to strict scrutiny analysis. Every anti-abortion law in the country currently has some kind of exemption that could meet this standard.
The finding that the mere existence of a secular exception could be the basis for finding that a statute violates the First Amendment means that Fulton has radically expanded what the court is willing to consider under strict scrutiny. If these five states challenge their anti-abortion laws under the court’s current free exercise jurisprudence, the strict scrutiny test should proceed like the state RFRA strict scrutiny analysis.
RFRA was built by a coalition that included individuals who intended to protect minority religious rights. However, the state statutes and federal protections for religious liberty have been used as a cudgel to enforce religious power structures. Advocates should hold the court’s feet to the flames by utilizing the current precedent to protect abortion rights. However, advocates should exercise caution. Precedents created utilizing RFRA will likely continue to be used by groups seeking to undermine equal protection laws. Advocates should not make the same mistakes as those who sought to weaponize religious liberty laws lest they build the infrastructure that may later be used in their own demise.
Kalyn is a second-year student at the University of Texas School of Law. She grew up in a religious community and attended Colorado Christian University, where she advocated for LGBTQ+ inclusion and became especially interested in church-state separation issues. This summer, she will be a constitutional litigation intern at Americans United for Separation of Church and State, and she hopes to continue developing her career as an impact litigator.