Is the Religious Liberty Tent Big Enough to Include the Religious Commitments of Jews?

One of the notable trends in the current Supreme Court’s religion jurisprudence is the shrinking of the establishment clause as the free exercise clause grows ever more robust. * In the complaint, petitioners note that while Florida seeks to ban abortion at 15 weeks’ gestation, “in Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act.” This kind of religious liberty claim, assuming away other procedural issues, should be recognizable to those who have successfully obtained religious exemptions from contraceptive coverage requirements under Obamacare, or from civil rights laws protecting LGBTQ Americans, or from public health rules limiting the size of religious gatherings during the pandemic. Some “tentative thoughts” to that effect were published this week by Josh Blackman, a professor at South Texas College of Law Houston, who contends that the religious liberty interests advanced by Florida’s Congregation L’Dor Va-Dor can be dismissed if proponents of religious liberty can get past their squeamishness about challenging the sincerity of the Jews seeking exemptions from the Florida law. Reform Jews tend not to.” He urges that when Reform or Conservative Jews claim that Jewish law requires abortion in many health- and life-sustaining circumstances, this claim is not serious because “if virtually every other facet of halacha is not binding on members of this congregation, how could it be that this one teaching on abortion is binding—so binding, that a state’s prohibition of that teaching actually substantially burdens the free exercise of religion?” 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. He says 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.” And since, according to Blackman, liberal and progressive Jews can pick and choose their religious commitments, they don’t in fact have any “religious obligations.” And since they don’t have any obligations, they can’t show that the government has substantially burdened them.