dlaycock at MAIL.LAW.UTEXAS.EDU
Tue Aug 4 14:43:14 PDT 1998
The abortion objection to RFRA was most seriously implausible
because it assumed that courts would overrule Roe v. Wade, almost certainly
because they found a compelling interest in protecting unborn life (if they
went the route of saying substantive due process does not exist, they would
have to overrule the birth control cases, the marriage cases, and other
stuff that seemed safe), then reverse field again and recreate abortion
rights under RFRA, which said nothing specific about abortion and was
supported by people on both sides of the abortion issue, and hold that
protecting unborn life was not a compelling interest under RFRA. And if we
try to make this scenario by positing a takeover by willful conservatives
followed by a counter takeover by willful liberals, we have to imagine the
liberals not being willful enough to overrule the case that overruled Roe,
and to confine abortion rights to those who were able and willing to claim
Beyond that, it seemed clear that few claims to abortion could
satisfy courts that they were religiously motivated. And the relevance of
Eugene's query is presumably to test the motivation test.
The proposal that conduct is not religious unless required by a
larger faith group is inconsistent with Indiana v. Thomas, Illinois v.
Frazee, and the whole Protestant tradition. American free exercise law
obviously does not codify a particular faith tradition, but it would be
bizarre to read it as codifying a definition of religion inconsistent with
the self-understanding of the most numerous tradition in the country.
It is equally clear that "My religion does not forbid what I want to
do anyway, on secular grounds" is not a religious motivation. Many of the
free exercise claims to abortion were little more than this: the other side
forbids abortion for religious reasons, and that makes it a religious issue,
and my religion does not forbid it, so I am exercising my religion when I
choose abortion. Not enough.
Mixed motive cases are harder, but no harder here than in free
speech cases, discrimination cases, and other contexts. Suppose a woman
makes an essentially secular judgment that her life would be better if she
deferred child bearing, and that a child later would have a better life than
a child now, and she invokes a general religious principal to do what is
best or maximize the good -- in effect, to be an act utilitarian. (And of
course, she believes that the aborted child has not developed far enough to
count in the utilitarian calculus.) I am confident that most courts would
say that this is a primarily secular motivation. Compare the draft cases,
including United States v. Gillette, where the religious principle was "no
unjust wars," and the effective operative judgment was that Vietnam was an
unjust war. The Court said that the real disagreement between the objector
and the government was over secular policy and facts on the ground in
Vietnam -- not a disagreement over religion.
I testified as follows after Rep. Hyde expressed fear that a woman
would say her religion "nudged her" toward choosing abortion, and that that
would be enough:
"Now for all practical purposes, the free exercise right to abortion
was rejected in Harris v. McRae, which is not going to be overruled in this
bill. It may be overruled on on e issue, but certainly not on other
important issues. The standing rule in Harris precludes any broad-based
religious challenge to abortion laws. Any RFRA challenge would have to
proceed one woman at a time with judicial examination of her individual beliefs.
"Harris holds that organizations cannot present a religious claim to
abortion. Now, what would the woman have to show about her individual
religious beliefs? She has to say that her desire for abortion is compelled
by or at least motivated by her religion. Now, what does motivated mean?
It means because of her religion. It is not enough to say permitted by her
religion. It is not enough to say abortion is consistent with her religion.
Religion has to be the reason for her abortion. It has to be the motive,
not nudged by, not a lot of personal reasons and a little bit of a religious
reason, not I wanted a career so I talked to my minister and he said go ahead
"Courts have dealt with the problem of mixed motive in cases of
mixed religious and political and religious[sic] motive, and the dominant
motive has to be religious."
That's more articulate than I usually achieve off the cuff, and I
still think that dominant or substantially religious motive is the right
test. And yes, I understand that there will be close cases under such a
test. There will be close cases under any test.
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
dlaycock at mail.law.utexas.edu
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