Does religious liberty protect the exercise of choice?

In the culture war battles over abortion and transgender rights, religion and religious liberty claims are often identified exclusively with one side of these disputes — those who oppose abortion and transgender rights. This is no longer the case. Several weeks ago, 1,500 synagogues observed a Reproductive Rights or Justice Shabbat (Sabbath). Jews and members of other faiths have brought religious liberty suits against laws restricting abortion in several states. Religious liberty claims may also be brought against laws limiting the rights and treatment of transgender individuals as well.

The lack of consensus within religious communities on abortion or transgender rights is not a legitimate basis for rejecting these claims. In Thomas v. Review Board, 450 U.S. 707 (1981), the Supreme Court clearly stated that “the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect.” Further, as the Court in Thomas explained, it is not the function of judges to evaluate the theological logic or merits of religious beliefs. Indeed, to be protected against infringement, a religious belief need not be “acceptable, logical, consistent or comprehensible to others.” This analysis is generally understood to apply to both constitutional and statutory religious liberty claims.

Still, religious liberty claims asserting the right to have an abortion in some circumstances or gender affirming medical care raise some important and complex questions.

One set of issues relates to the generality and specificity of religious beliefs and to the degree of choice one’s religion permits to the believer.

The most straightforward cases involve specific religious requirements. To the extent that a Jewish pregnant person, for example, believes that Jewish law requires them to obtain an abortion if continuing the pregnancy places their life at risk, a religious liberty challenge to a law preventing them from terminating their pregnancy would require the state to justify the rejection of their challenge under very rigorous review. Similarly, a religious physician who believes they are obligated by their faith to perform an abortion in such circumstances would have an equally valid prima facie religious liberty claim.

The harder questions relate to beliefs based on more general beliefs that confer some choice on the believer’s actions. For example, assume a person believes as a religious matter that they are required to protect their health and well-being. They believe that having an abortion in their circumstance is consistent with their faith. But their religion recognizes that they have a choice as to how they will comply with this general requirement. They would not violate their faith if they carried the pregnancy to term. Would a law preventing them from exercising the choice to have an abortion impose a substantial burden on their religious liberty?

Alternately, assume a person of limited economic means believes as a religious matter that they are required to take care of their family and take necessary steps to adequately feed, clothe, and shelter their children. Would a law that prevents them from doing so by interfering with family planning be substantially burdensome to their religious exercise if they believe that their faith provides them a choice as to whether or not to terminate the pregnancy to enable them to provide for their family? In these situations, the believer would have considerable discretion and autonomy in determining how they implement their beliefs. Should they be able to assert a religious liberty claim against laws denying them that choice?

There are several examples of religious exercise involving considerable discretion and choice by the believer. For example, many religious groups engage in a broad range of charitable and service activities. These include soup kitchens, food and clothing drives, homeless shelters, substance abuse programs, medical clinics and hospitals, domestic violence shelters, and refugee resettlement programs, among others. These activities are asserted to be religiously motivated, but their connection to religious belief is at a high level of generality.

The admonition to take care of the poor and needy is religiously based. However, the decision to undertake, and method of operation of, any particular charity or service involves considerable discretion and autonomy. Many faiths would concede that there are numerous alternative ways to satisfy the goal of helping those in need. Notwithstanding the choice involved, surely these activities deserve to be protected for free exercise purposes. Neither the government nor the courts should have the authority to deny religious groups the opportunity to operate a homeless shelter because their faith permits them the discretion to perform other charitable acts instead.

Similarly, it is surely an exercise of religion for a congregation to build and operate a house of worship. But deciding the size, location, and design of a house of worship involves considerable choice and discretion.

Not every religious liberty claim asserting the right to have an abortion or transgender medical care involves choice. The argument for physicians might avoid the issue of generality and choice when they believe they are required by their faith to provide the medical care their patients seek if doing so is consistent with accepted standards of medical care and their own professional judgment.

The argument by physicians challenging laws prohibiting gender affirming care would seem to be particularly powerful in this regard, in that the physician’s religious commitments and professional expertise are reinforced by their patient, the patient’s family, and national medical associations. Yet even if choice is involved, there is a strong argument that religious liberty protects choice.

Would courts fairly consider these claims?

For some judges doing so would force them to confront a tension between their intellectual integrity and their ideological predispositions. More importantly, I think these cases will be a test of the judicial commitment to religious liberty. It is easy to protect the exercise of a right when one sees little cost to one’s own values in doing so. But the real test of a commitment to fundamental rights are those cases where the exercise of the right conflicts with interests we care about. If we care about freedom of speech, we have to be willing to protect speech we hate — speech which imposes harm on people we care about. And for judges who purport to care about religious liberty, the real test is whether they will protect such liberty when doing so involves conduct that conflicts with the judges’ own values.

Alan Brownstein is a professor of law emeritus at the University of California, Davis School of Law. He has written numerous articles for academic journals and opinion pieces for other media on a range of constitutional law subjects. He is a member of the American Law Institute and served on the Legal Committee of the Northern California American Civil Liberties Union. He received his B.A. degree from Antioch College and earned his J.D. (magna cum laude) from Harvard Law School, where he served as a Case Editor of the Harvard Law Review.