A Lot of Religion Claims In Court Cases Are Made Up
A Religious Rights Organization Stumbles Into the Truth
In the wake of the Dobbs decision overturning Roe v. Wade, left and liberal organizations, understandably, sought out legal theories that might protect abortion rights. And it was inevitable that, since we now have a conservative Supreme Court that aggressively protects religious freedom rights, they settled upon a strategy of bringing a suit claiming that abortion restrictions impinge on religious freedom.
Pro-lifers and their allies on the right wing reacted as you might imagine, blasting the lawsuit as a subterfuge. Abortion, they say, is not a religious sacrament. Among the critics is Becket Law, the leading conservative public interest law group in the religious freedom space, which usually finds itself representing religious clients seeking exemptions from generally applicable laws. But in this instance, Becket filed a brief arguing that the Jewish plaintiffs seeking to undermine abortion restrictions are insincere and do not actually believe their religion requires abortion.
My sense is that Becket is right and that this lawsuit was one part “turnabout is fair play”, one part “if we say we have a religious claim, we might get a hearing from conservative courts”, and zero parts sincere religious conviction. But nonetheless, it takes real chutzpah for Becket to be suddenly arguing that these plaintiffs are not sincere. The world of religious freedom litigation, championed by conservatives, is a world of insincere claims.
For instance, take Hobby Lobby, the crafts store run by conservative Christians who successfully invalidated a portion of the Obamacare contraceptive mandate on the ground that the owners “sincerely” believed that certain forms of contraception were really abortion and they shouldn’t have to pay for them. For years, Hobby Lobby paid for those same supposed abortion drugs in their health insurance program with no complaint; it was only when Obamacare was passed and became a target of the conservative movement wanting to stick it to Obama that Hobby Lobby suddenly discovered its “sincere” religious objection to paying for the drugs. Nonetheless, the courts never questioned Hobby Lobby’s sincerity.
Or consider the Little Sisters of the Poor. While they certainly are a devout group of Catholics, they probably engaged in more than a little bearing of false witness in their court case, where they claimed that merely having to file the form seeking an exemption from the Obamacare contraceptive mandate violated their religion, because that would mean that the federal government would know that their employees were not covered and would pick up the cost. These sorts of form filing requirements are exactly how religious exemptions work— when you file a form conscientiously objecting to a war, for instance, someone else was drafted in your place. Your religious freedom right was a right not to serve, not a right to obstruct the military from sending someone to serve in your stead. And, again, I doubt the Little Sisters consistently adhere to this supposed belief— for instance, I am sure they file the necessary forms to ensure that they do not have to pay taxes, even though the rest of us have to pay more to make up the lost tax revenue.
The cases involving businesses refusing to serve gay people involve particularly obnoxious levels of insincerity. For instance, Masterpiece Cakeshop, the Colorado bakery, announced that they had no problem baking cakes for gay people but just wouldn’t bake custom cakes, because the latter were an endorsement of gay marriage, which they did not believe in. This strikes me as a completely made up position to maximize litigation advantage— if God doesn’t want you to assist in a gay wedding, that would be true whether your assistance comes in the form of a non-custom cake or a custom cake. The only difference is that if you are trying to cast your argument as a speech claim in court, you want to be able to argue that you really have no problem serving gay people but the custom cake contains a “speech” element not present in the non-custom cake.
Similarly, the latest anti-gay marriage case, 303 Creative, involves a business that hasn’t even started doing business yet but which has announced that it will not prepare wedding announcements for gay couples. It hasn’t even started doing business yet, so we actually don’t know whether it will turn away any gay couples and, if it does, what gay couples it will turn away and what gay couples it will serve. Litigating a hypothetical case like this has enormous advantages for the plaintiff, because it can put in an affidavit swearing that its religious beliefs are exactly whatever the plaintiff’s lawyers think is where the courts will draw the line. So, again, like Masterpiece Cakeshop, 303 Creative’s statement as to what its religious beliefs do and do not allow it to do is tailored so that it can make a free speech claim, as if God will condemn you if you prepare custom online invitations but not if you just provide the stationery for the gay couple.
Insincerity in religious freedom cases, of course, has a long pedigree. Back in the 1960’s, stoners tried to get religious exemptions from the drug laws, and people who didn’t want to serve in Vietnam did everything they could to expand the definition of what constitutes a conscientious objector. The late conservative Justice Antonin Scalia drew on this experience in his famous opinion denying a constitutional right to religious exemptions from generally applicable law (in that case, an Indian tribe that wished to use peyote). Here was the key discussion:
Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because we are a cosmopolitan nation made up of people of almost every conceivable religious preference, and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws, to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment's protection of religious liberty does not require this.
I omitted the legal citations for readability, but for each of those categories Scalia listed (military service, taxes, health and safety regulation, compulsory vaccination, etc.), he cited cases where the religious freedom claim had been asserted. As he said, to allow such claims would court anarchy. Especially since people will make insincere religious claims in court.
You might fight the premise— why should we expect people to make insincere claims? But the answer is the same as with any law people would like to not follow— people lie to escape legal obligations. They falsely claim they didn’t run the red light or speed in traffic court, they don’t report income to the IRS, and they deny stealing stuff from the office. Imagine if you could claim an exemption from taxation by simply saying your religion prohibited you from paying taxes— how many people do you think would claim to belong to that religion?
Nonetheless, our conservative courts in 2023 are a lot more sympathetic to religious freedom claims than Justice Scalia was in 1990. And of course, Becket Law has been at the center of bringing cases to expand religious rights based on carefully, lawyerly constructions of plaintiffs’ alleged legal beliefs. Which makes it quite ironic that when someone makes a religious claim that Becket’s political coalition does not like, suddenly they want to litigate sincerity.
I, of course, have no objection to litigating sincerity. Indeed, I think we have to litigate it, because otherwise the courts will be flooded with insincere plaintiffs claiming convenient religious beliefs to get them out of generally applicable obligations, causing exactly the parade of horribles Justice Scalia was concered about. But religious freedom plaintiffs have so far avoided any serious scrutiny of the sincerity of their beliefs; nobody, for instance, got to cross examine Hobby Lobby’s owners as to why it was that they didn’t realize they opposed funding certain sorts of contraceptives until the political movement they are a part of decided that destroying Obamacare was its central mission.
If scrutinizing the religious beliefs of plaintiffs who assert that abortion is religiously protected leads to scrutiny of the sincerity of all religious freedom litigants, I am all for it. Somehow, I doubt that’s what Becket has in mind.