Linda Greenhouse, no longer on the New York Times’ Supreme Court beat but blogging for the paper from Yale Law School these days, has an interesting blog post about a case on the display of the Ten Commandments in a public building that is coming back to the Supreme Court soon.
But I don’t want to talk about that case. I want to talk about Greenhouse’s nostalgic longing for John Paul Stevens, whom she aptly describes as the “strictest separationist” on the Supreme Court. She particularly admires one of Stevens’ worst notions, noting that he was “the only justice willing to articulate the position that laws incorporating the view that life begins at conception are theological exercises that should be invalidated on Establishment Clause grounds.” The “only justice” indeed. No other justice ever joined Stevens in this view, probably because it is one of the dumbest ever pronounced by a justice of the Supreme Court.
Stevens first expressed this view, to my knowledge, in his opinion concurring in part and dissenting in part in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), 560ff. The Missouri law at issue in that case had declared that every human life “begins at conception.” Justice Stevens professed himself incapable of seeing any “secular legislative purpose” in such a declaration, and held that therefore the law expressed a purely “theological” point of view and was thus a violation of the establishment-of-religion clause of the first amendment. But of course the “purpose” of the Missouri declaration was obvious on its face. It was intended to state, and did state, a fact as a predicate for the statutory requirements to follow. Standard textbooks in embryology, then as now, unequivocally declared the scientific fact that every human life begins at conception. What an embryology textbook cannot tell us, as a matter of biology, is what to do about that fact–what moral requirement, if any, that fact should impose on us. This is what the Missouri legislature, quite reasonably, sought to do.
Stevens followed the lead of Roe v. Wade itself in regarding a settled fact as unsettled. This permitted him to claim, ignorantly or willfully, that all attempts to speak to the moral standing of human embryonic or fetal life are necessarily the expression of “theological” claims. Look here, he argued, St. Thomas Aquinas had such-and-such a view on the stages of prenatal development. Other religious figures have had different views on the same question. It follows that all views on “life” before birth–he should have said “personhood,” but yes, he was that confused–are necessarily religious views. And for Missouri to take one such view and try to embody it in law is to “establish” a religious viewpoint and impose it on everyone, contrary to the first amendment. Or so Stevens reasoned (I employ the verb generously).
But to observe that theologians have wrestled with questions at the intersection of fact and moral principle is not to establish that the questions, or the answers to them, are of a peculiarly “religious” character, as the teachings of special revelation rather than reason. St. Thomas also had interesting things to say about when a killing was not a culpable homicide. Other figures in the Christian and other religious traditions have had different things to say on the same subject. It does not follow that legal distinctions among various kinds of killing–when one is justifiable and therefore not a crime, while another is merely involuntary manslaughter, and still another is first-degree murder–involve the employment of “theological” categories of thought. Yet for Justice Stevens to be logically consistent–a high bar for him to clear, I know–he would have had to invalidate all homicide statutes as violations of the establishment clause.
Biological ignorance, theological incompetence, and logical incoherence: it all added up to one of the most addled arguments in the annals of the United States Reports. No wonder even Harry Blackmun never joined Stevens in this view. But Linda Greenhouse? She’s sorry to see Stevens go, precisely because he takes this scoundrelly nonsense with him.