Brad Littlejohn: Losing ground

NICK EICHER, HOST: Today is Tuesday, January 31st. Good morning! This is The World and Everything in It from listener-supported WORLD Radio. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

Over recent decades, America has become a more secular country. Many Christians have pushed back by strengthening religious freedom protections in the law. But by taking that approach, WORLD Opinions Commentator Brad Littlejohn thinks we may have lost something.

BRAD LITTLEJOHN, COMMENTATOR: For several decades now, the conservative legal movement has been waging a war on two fronts: the battle to contract abortion rights and the battle to expand religious liberty protections. While we thought the two campaigns were advancing along parallel lines, pro-abortion activists are now trying to put them at cross-purposes.

One of the clearest signs of this conflict appeared in Indiana in December. A county judge blocked the state’s new abortion ban from taking effect on grounds that it violated the 2015 “Religious Freedom Restoration Act.” The judge ruled that since the plaintiffs insisted that it was their religious conviction that fetuses are not persons, the state could not prevent them exercising their right to abort.

In retrospect, this argument shouldn’t be surprising.

Its foundations were laid at least as early as 1992 in the infamous Planned Parenthood v. Casey case that reaffirmed Roe v. Wade. Anthony Kennedy, writing with the majority, famously opined that since the Fourteenth Amendment protected liberty, and since, “at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life,” then the Fourteenth Amendment conferred a right to abort. Kennedy’s definition of liberty sounded an awful lot like the idea of specifically religious liberty, at least as it has come to function in modern jurisprudence.

There was a time when courts generally ruled that the First Amendment’s guarantee of “free exercise of religion” applied to religious institutions and to individuals on the basis of longstanding norms within their religious communities. Examples included the right of Quakers, Mennonites, and the like to claim the status of a “conscientious objector” to military service; a mere personal moral stance against war was not given equal weight.

As American society became more secular and individualistic, however, the boundaries widened. During the Vietnam War, courts allowed private individuals claiming a “sincere and meaningful belief” against war the benefit of a religious exemption.

The problem with such an ever-expanding definition of “religious exercise” is that it could be broad enough to encompass just about anything and subjective enough to be almost impervious to judicial scrutiny. The Indiana court simply applied the logic remorselessly.

Conservatives may certainly object that our courts tend to be very selective in what logic they choose to apply. Moreover, courts have frequently held that religious liberty cannot be used to justify harms to third parties.

On the other hand, the Indiana ruling is the flipside of Justice Alito’s finding in Burwell v. Hobby Lobby. Alito found that, since the question of when life begins was a religious conviction, Hobby Lobby should not have to comply with government requirements to provide birth control. We might object that claiming a religious right to abort is quite different, since it inflicts harm on a third party. But progressives and conservatives can rarely agree on what counts as harm.

Conservatives are sometimes tempted to use religious liberty as a judicial get-out-of-jail-free card, and progressives have now shown they can play that game too. Sooner rather than later, we will have to learn how to make and win our case for conservative principles on substantive moral grounds. After all, God did not create a world in which abortion is against “my morality” or “my religion,” but in which it violates the laws of human nature itself.

I’m Brad Littlejohn.

Editor’s note: WORLD has updated the transcript of this segment to note the correct date for Planned Parenthood v Casey.

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