50.50: Opinion

Court ruling should inspire US Left to reclaim meaning of ‘religious freedom’

OPINION: The Christian Right has long used ‘religious freedom’ to limit human rights – but there is hope for change

Chrissy Stroop
Chrissy Stroop
7 October 2022, 5.03pm
Protesters demand the US government protects abortion rights at a 2 October rally
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Photo by Allison Bailey / SOPA Images/Sipa USA

Sometimes, even amid a seemingly ceaseless flood of bad news, encouraging surprises come from the most unexpected of places. Even places like my home state of Indiana, in which I no longer reside because the oppressive, right-wing Christian atmosphere that characterises much of the state is suffocating to me.

I expect Indiana’s politics and court system to be perennial disappointments, and in that expectation, I am rarely disappointed. And yet, in late September, a federal district judge ruled that Indiana’s state law requiring foetal tissue remaining after an abortion or miscarriage to be buried or cremated like a deceased person should be overturned. This law now cannot be enforced while the case challenging it makes its way through the courts. State Attorney General Todd Rokita, a Catholic culture warrior, has vowed to appeal.

The ruling followed on the heels of another judge blocking Indiana’s draconian new abortion ban from being enforced while court challenges continue. I would have expected neither outcome, and they further strengthen my hope that the Supreme Court’s decision to strike down abortion rights is widely perceived as severe overreach, to the point that the public has been galvanised to fight back.

But here’s the kicker about the ‘foetal disposition’ case. The judge who ruled on it, Richard L Young, based his decision on religious freedom grounds. This challenges those who defend the Christian Right’s ‘religious freedom’ rhetoric, which has been a key driver of so much anti-democratic lobbying, legislating and legal manoeuvering in recent years.

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If one were to spend much time reading the US press, one would likely come away with the unfortunate impression that religious freedom is an inherently conservative, even reactionary, ideal – an ideal at odds with support for reproductive justice, LGBTIQ rights, and even workers’ rights.

This situation is the result of a decades-long push by the Christian Right and its allies to reinforce the Christian privilege that permeates American society, and further establish this in the courts using legal outfits like Liberty Counsel and Alliance Defending Freedom (ADF). Christian Right forces have also unfairly stacked the Supreme Court with right-wing, anti-choice, partisan justices, who willingly apply their distorted framing.

The sum of all of this is to weaponise ‘religious freedom’ for discrimination, allowing conservative Christians to strike powerful blows against human rights and equal accommodation in the public square. But the First Amendment to the US Constitution reads in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

There is a long and rich history of religious support, across a wide range of faith traditions, for the right to reproductive autonomy, including abortion

Columbia Law School’s Law, Rights, and Religion Project

Discussions of the courts often hinge on which of these two clauses should be prioritised. For example, since the 1960s, faculty- or staff-led prayer in public schools has been understood to be a violation of the establishment clause, as students who refuse to participate may fear retaliation or ostracisation from teachers and/or their peers – meaning there is an inherently coercive element to supposedly voluntary prayer sessions.

But this summer, when the radicalised Supreme Court decided to rip many important precedents to shreds, it edged closer to allowing such prayer on ‘free exercise’ grounds. In June, the court ruled in favour of an assistant high school football coach who had defied school officials’ ban on ostentatiously praying with student athletes after games. Before the ruling, Rokita, Indiana’s attorney general, wrote an op-ed claiming that the coach’s ‘religious liberty’ that is, his right to the free exercise of his religion, had been violated. The Supreme Court agreed.

Despite this misuse and abuse of the First Amendment, neither the free exercise clause nor the concept of religious freedom itself is inherently conservative or reactionary. And that’s what’s so revolutionary and refreshing about the foetal remains ruling in Indiana.

If we are to understand the concept of religious freedom as one that applies equally to citizens of all faiths and none, then we must understand the free exercise clause the same way. This is what Judge Young has done by arguing that the 2016 law, passed when the former vice president and unreconstructed zealot Mike Pence was governor of the state, illegally imposes a particular religious view – that foetal tissue deserves to be treated as a deceased person – on those who have abortions in the state of Indiana.

What makes this case even more fascinating is that the Supreme Court has already ruled in the Indiana law’s favour. This new challenge was filed on different grounds in 2020 – two years before the Supreme Court overturned Roe v Wade – by anonymous women whose lawyers argue that the law caused them “shame, stigma, anger, and anguish”.

As the Columbia Law School’s Law, Rights, and Religion Project thoroughly documented in a recent report, “There is a long and rich history of religious support, across a wide range of faith traditions, for the right to reproductive autonomy, including abortion.” It listed as specific examples “the Presbyterian Church, Reform and Conservative Judaism, the United Church of Christ, and the Unitarian Universalist Association”.

An appendix to the report also highlights a number of challenges to state-level anti-abortion laws currently making their way through various states’ court systems.

Should these challenges come before the current US Supreme Court, of course, they have little hope of prevailing. But even so, the willingness of lower state and federal judges to articulate a concept of religious freedom that includes abortion rights could prove extremely helpful to the cause of reclaiming the framing of this fundamental right from the anti-democratic Christian Right.

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