Marci Hamilton on the Satanic Temple’s RFRA Strategy

Marci Hamilton, a prominent church/state scholar and outspoken opponent of the Religious Freedom Restoration Act, writes about the Satanic Temple’s new strategy for using RFRA to get women out of state anti-abortion restrictions. And she points out a fascinating bit of history about the passage of the act and concerns over this very thing:

When the Religious Freedom Restoration Act (“RFRA”) was first being considered over twenty years ago, the Catholic bishops did not jump in to support it with both feet. They were concerned it would be invoked by some believers to create an avenue to obtain abortion on demand.

The General Counsel to the United States Catholic Conference at the time, Mark Chopko, testified before the House Committee on the Judiciary a year before RFRA was first enacted in 1993 that the bishops were concerned that RFRA might “be used to promote access to abortion.” He predicted that abortion rights claims would be made under RFRA and worried aloud: “Even if only a few claims to obtain abortions do succeed under [RFRA], what restraint will remain on district and state attorneys to deny abortions to others who offer affidavits conforming their claims, beliefs, and motions to the prior successful claims? These claims will be numerous and far-reaching in their impact.”

For the bishops at the time, the “lives of the unborn [were] too important to put at risk under [RFRA].” In other words, regardless of all the other religious agendas to defeat certain laws, like fair housing laws, the bishops were intent on opposing RFRA unless it contained an exception for the abortion laws. Before the Senate Subcommittee on the Judiciary, he added that he was concerned “whether RFRA can be used to upset even moderate abortion regulation.”

Obviously, they did not succeed on this score. No abortion law exception was inserted into RFRA. Nor did the bishops wait long following RFRA’s enactment to invoke its advantages when it suited its interests. It was the Catholic bishop of San Antonio, Texas, who brought the early RFRA lawsuit to overcome the historic preservation laws of Boerne, Texas, that eventually rendered it unconstitutional in Boerne v. [Archbishop] Flores.

Their enthusiasm for RFRA is at an all-time high now as the bishops and Catholic institutions generally are sinking who-knows-how-much money into lawsuits invoking RFRA to prevent all of their employees and students from receiving cost-free contraception coverage.

The bishops may now be ruing the day they lost the legislative battle to keep abortion laws from being subject to RFRA, and the evangelicals, who were on board RFRA from day one, may now wonder what they have wrought with RFRA. Their problem is that RFRA does not and cannot (consistent with the Constitution) provide its extreme standard solely to some religious believers and not others.

It’s the Boerne case that makes the satanists’ strategy a failing one. All of the abortion restrictions they want to get out of are state laws and RFRA doesn’t apply to state laws because of that ruling. And there’s one more reason it isn’t likely to succeed:

The RFRA doctrine raises four issues: (1) is the entity protected by RFRA; (2) is the believer sincere; (3) does the law impose a substantial burden on the believer; and (4) can the government prove that the law serves a compelling interest (5) in the least restrictive means?

Is the Satanic Temple protected by RFRA? Check. In Hobby Lobby, the Supreme Court held that a for-profit, nonreligious corporation could assert rights under RFRA. That issue is does not arise here, because the Satanic Temple is a religious organization clearly intended to be covered by RFRA.

Is the Satanic Temple sincere about its belief against coercive informed consent laws? Check. The next issue that could arise in a RFRA case is whether the believer is sincere. There were and are many reasons to question the sincerity of the Greens, who covered contraception before the Affordable Care Act mandated it and whose company is heavily invested in the companies that make the contraceptives to which they object, but the federal government failed in Hobby Lobby to pursue this legitimate tack, likely for political reasons. In any event, there can be no question that the Satanic Temple is sincere about its beliefs regarding the coercive informed consent abortion laws to which it objects.

Yes, but they’re trying to use this to protect women who aren’t members of the Satanic Temple. And the question is not whether they are sincere but whether a woman who uses this approach is sincere. The Satanic Temple is a very small group of people. And if a woman suddenly joins the temple just before she gives this a try, a court is unlikely to view her actions as sincere.

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  • Alverant

    Well HL suddenly decided providing birth control pills after ACA passed and they’re still doing business with China which enforces a 1-child policy. So if HL’s beliefs are considered sincere then so should any woman who joins the Satanic Temple.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Their problem is that RFRA does not and cannot (consistent with the Constitution) provide its extreme standard solely to some religious believers and not others

    That’s what the Supreme Court is for.

     

    Yes, but they’re trying to use this to protect women who aren’t members of the Satanic Temple…”

    And employees of Catholic hospitals and students in Catholic-affiliated colleges aren’t necessarily Catholic, nor are employees of Hobby Lobby necessary members of the Church of Hobby Lobby, Inc. (“Blessed be the Stockers of the Aisles of Crap…”).

  • cry4turtles

    I just love their use of “sincere”. What will they do? Courtroom scenario:

    “Counselor, what is the level of your client’s sincerity?”

    “Well I’m not sure. Let’s send in the thought police to find out!”

    “Yay,” cheer the spectators

  • Chris J

    Yes, but they’re trying to use this to protect women who aren’t members of the Satanic Temple. And the question is not whether they are sincere but whether a woman who uses this approach is sincere.

    Here’s the thing. I don’t think you could question if the women sincerely believe they shouldn’t be subjected to the anti-abortion propaganda. What you’re left with is if it is a sincere religious belief. And honestly, if that is the grounds by which a court denies protection, that would be just as important as if the court granted protection, because it shows plainly that religious belief is being favored by law.

    The very fact that a woman would need to join the ST simply to gain the benefits of being exempt means that something is very wrong, even if a court decides against the ploy.

    If a court decides that RFRA doesn’t apply to state law, that’d be where the challenge fails. Otherwise, whether the ST wins or loses, they make their point.

  • Uncle Ebeneezer

    And if a woman suddenly joins the temple just before she gives this a try, a court is unlikely to view her actions as sincere.

    But wasn’t part of the HL ruling that the Court had no place questioning sincerity of a belief?

    Let’s start with the law. When a religious individual or institution claims that a government policy impermissibly burdens the exercise of religion, the essential truth of the religious objector’s claim is not at issue. As Eugene helpfully explained in this post, “under RFRA, the question whether there is such a substantial burden should be based on the Hobby Lobby owners’ sincere judgment about what constitutes culpable complicity with sin, and not on the courts’ judgment.” This principle was accepted by all of the justices in Hobby Lobby. As Justice Ginsburg conceded in her dissent, courts must “accept as true” a RFRA plaintiff’s sincerely held religious beliefs and are not to question “the plausibility of a religious claim.”

    Via: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/07/06/no-the-supreme-courts-hobby-lobby-decision-is-not-based-upon-a-scientific-mistake/

    So the State/Federal distinction may be a deal-breaker but the sincerity of the belief is neither here nor there. Right? (I’m not a lawyer so it’s an honest question.)

  • Chris J

    @Uncle Ebeneezer:

    Not a lawyer, but it’s not the case that the court can’t question sincerity as far as I can tell. Here’s the relevant text from the Hobby Lobby Decision:

    HHS argues that the connection between what the objecting parties must do and the end that they find to be morally wrong is too attenuated because it is the employee who will choose the coverage

    and contraceptive method she uses. But RFRA’s question is whether the mandate imposes a substantial burden on the objecting parties’ ability to conduct business in accordance with their religious beliefs. The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. [bold text mine] It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.

    So the court’s opinion was that if the Greens thought that providing health care coverage that could possibly cover birth control was an imposition on their religious beliefs, then the court had to assume it was. In other words, the question “is this a burden” is the one that the court has to assume, not if the belief is sincere.

  • leni

    The very fact that a woman would need to join the ST simply to gain the benefits of being exempt means that something is very wrong, even if a court decides against the ploy.

    I don’t understand why one would need to be a part of an organization for any length of time in order to have one’s religious freedom protected. I mean restored. Whatever.

  • 2-D Man

    The Satanic Temple is a very small group of people. And if a woman suddenly joins the temple just before she gives this a try, a court is unlikely to view her actions as sincere.

    This reads a little strange to me. I thought the regulations applied to the abortion provider, not the patient. The patient herself doesn’t need to be part of the Temple, only the provider would. And in terms of sincerety, since the temple is small, the provider can easily claim that they didn’t know the Temple stood for this position, which they’ve held all along, and continue to hold.

  • http://www.facebook.com/profile.php?id=523300770 stuartsmith

    I thought it was established that the sincerity and content of religious claims were not matters for the courts, and that people just had to be taken at their word on those subjects.

  • http://www.pandasthumb.org Area Man

    And if a woman suddenly joins the temple just before she gives this a try, a court is unlikely to view her actions as sincere.

    Just to add to what’s already been said, the courts have declined to rule on the sincerity of individual religious beliefs, even when the purported beliefs are blatantly ridiculous (Ginsberg in her dissent cited an example of a native American man who claimed that a Social Security card would steal his daughter’s soul; he lost the case not because he was clearly making shit up, but because the Social Security card didn’t interfere with his exercise of religion). There’s a good reason for this. You don’t want the courts trying to adjudicate what the content of an individual religion is, for example, whether opposition to contraception is really a part of Catholic doctrine, etc. That puts the courts in the role of religious scholar and theologian, which we really don’t want.

    So whatever else may cause this strategy to fail, a woman joining the Satanic temple just days before filing suit would not be a problem. The courts will not (and should not) question whether she was being sincere in her religious conversion and the new-found content of her beliefs.