(Editor’s note: This column went to press before the Supreme Court handed down its ruling Friday that overturned Roe v. Wade.)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….
– First Amendment to the Constitution
At least one Florida synagogue takes this amendment very seriously. Hats off to Congregation L’Dor Va-Dor of Boynton Beach, Florida, which is suing its own state over its oppressive new abortion law that prohibits abortion after 15 weeks.
In a muscular expression of the Jewish concept tikkun olam (repair the world), L’Dor Va-Dor has gone beyond prayers for victims of the new law – the women robbed of their right to make their own healthcare decisions, particularly low-income women who can’t afford to travel to states where freedom of choice is respected.
It has gone beyond sermons from the bima teaching how the Jewish approach to abortion differs from other faiths.
This congregation is taking Florida to court. The complaint, which was filed in Leon County Circuit Court, claims that the law – signed by Gov. Ron DeSantis and set to take effect on July 1 – violates the religious freedom rights of Jews, prohibiting Jewish women from practicing their faith free of government intrusion, infringing on their privacy rights and on their constitutional right to freedom of religion.
This same Constitution guarantees the right to bear arms.
Funny how some states pick and choose which rights to protect, limiting the First Amendment while giving free rein to the Second.
The congregation’s rabbi, Barry Silver, said in an interview with JTA that religious minorities (i.e. Jews) suffer when separation of religion and government crumbles.
“Every time that wall starts to crack,” he said, “bad things start to happen.”
I am not a lawyer, yet some people who follow these things say L’Dor Va-Dor has a case.
In a May 12 op-ed for The Washington Post, Rachel Kranson, associate professor of religious studies and director of Jewish studies at the University of Pittsburgh, predicted such an argument could be made if Roe v. Wade were overturned.
“Ideally, this argument would carry a lot of weight,” Kranson wrote. “After all, since the installation of Justice Amy Coney Barrett, the Supreme Court has been drastically expanding free-exercise exemptions under the First Amendment and granting a remarkable proportion of claims.”
Kranson quoted an argument by the Law, Rights and Religion project at Columbia Law School that maintains the court’s recent opinions have “created a hierarchy of constitutional rights, with religious rights at the top.”
Writing for Salon on Dec. 11, 2021, Lloyd Steffen, university chaplain and professor of religion studies at Lehigh University, said, “The religious protections housed in the First Amendment provide a strong and explicit constitutional foundation for abortion rights (and even for privacy claims since citizens have a right to keep religious beliefs private.”
Finally, in a March 11 article for the Kentucky Law Journal, Staff Writer Joshua Shelepak takes aim at the Mississippi case, which the Supreme Court may use to take down Roe. He claims the arguments the state makes are “misleading at best.”
“Mississippi argues that ‘[n]owhere else in the law does a right of privacy or right to make personal decisions provide a right to destroy a human life,’” Shelepak writes. “The problem is that the question of fetal humanity is a moral and philosophical one, and people will answer that question differently based on their religious beliefs. The Catholic view, for example, is different than the Jewish view.”
He added, quoting Lehigh’s Steffin, “If the Court were to accept Mississippi’s argument, they ‘would be taking governmental action to establish a belief that contradicts those who in the free exercise of their religion deny that belief.’”
In other words, it would establish one religion’s beliefs over another’s – ours. That seems reason enough for a synagogue to go to court. One wonders if others will follow.
(Lee Chottiner is the managing editor of the Jewish Louisville Community.)