Bench Memos

Law & the Courts

Abortion and the Establishment Clause?!?

In her online New York Times column yesterday, Linda Greenhouse makes the extraordinary claim that laws against abortion violate the Establishment Clause. Let’s consider her argument.

1. Greenhouse begins by asserting: “If the First Amendment’s Establishment Clause means anything, it has to mean that God’s will cannot be a constitutional justification for a law that erases an individual right.”

Let’s set aside the question-begging assertion that there is some pre-existing “individual right” to abortion. If Greenhouse’s assertion about the meaning of the Establishment Clause were correct, why would that meaning apply only to “a law that erases an individual right”? Why wouldn’t it apply equally to any other law for which “God’s will” is offered as “a constitutional justification”?

It would seem that Greenhouse has tried to gerrymander her assertion in order to hide its obvious flaws. Did legislators who believed that racial discrimination was contrary to “God’s will” violate the Establishment Clause when they enacted civil-right laws? Do legislators who believe that God calls us to be stewards of the environment violate the Establish Clause when they support environmental protections?

(Greenhouse’s gerrymander also isn’t successful. Many civil-rights laws “erase[d] an individual right” to hire and fire at will, and many environmental laws “erase[] an individual right” to do with one’s property as one pleases.)

Many or most religious believers aim to root their public-policy positions in what they understand (imperfectly) to be “God’s will.” My own position in support of laws against murder, for example, is ultimately founded not on some consequentialist or utilitarian justification but on my belief that every human being is made in the image and likeness of God and should therefore be protected in law against unjust killing. It is difficult to imagine that the historical justification for our laws against murder can be separated from some such religious conviction.

Under Greenhouse’s illogic, a legislator who is an atheist can support a policy position based on his own understanding of right and wrong but a legislator who is a religious believer can’t support that same policy position if his own understanding of right and wrong is based on his religious beliefs. That makes no sense.

2. Embracing a nutty solo dissent by Justice Stevens thirty years ago, Greenhouse posits that the statement of biological fact that “the life of each human being begins at conception” is “an unequivocal endorsement of a religious tenet.” But legislators cannot be forbidden from recognizing scientific reality merely because some religious institutions also recognize that reality.

Greenhouse, I’ll note, does not offer her own view of when “the life of each human being begins.” Perhaps that’s because she can’t offer a coherent alternative. Or perhaps it’s because, under her commitment to abortion rights, she thinks it immaterial that abortion kills the life of the in utero human being. Or perhaps both.

3. Greenhouse asserts, more broadly, that “the United States is reconfiguring itself into a theocracy that would have appalled our Founding Fathers.” In the context of her wild Establishment Clause claim, it’s clear that the first half of her assertion—that “the United States is reconfiguring itself into a theocracy”—encapsulates her indefensible position that legislators can’t act on religiously based moral understandings of right and wrong. So much for her incendiary rhetoric of “theocracy.”

The historical amnesia reflected in Greenhouse’s claim that “our Founding Fathers” would have been “appalled” by legislators’ reliance on religiously founded moral understandings is astounding. I’ll limit myself to a few examples (and note that Greenhouse offers none in support of her claim).

In his Farewell Address, George Washington famously declared:

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

Here’s a passage from Washington’s first inaugural address:

[I]t would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by themselves for these essential purposes.

As the Supreme Court recounted in Lynch v. Donnelly (1984):

The day after the First Amendment was proposed, Congress urged President Washington to proclaim a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God. President Washington proclaimed November 26, 1789, a day of thanksgiving to offer our prayers and supplications to the Great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions.

Thomas Jefferson prayed in his first inaugural address that God guide government leaders in making public policy: “May that Infinite Power which rules the destinies of the universe lead our councils to what is best.” Likewise, in his second inaugural address, Jefferson asked Americans “to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations.”

What would have “appalled” most or all of the Founding Fathers is Greenhouse’s postmodern notion that it is illegitimate for legislators to seek to do “God’s will.” (To be clear, doing God’s will isn’t, in the understanding of most religious believers, remotely equivalent to having the law compel all good and punish all evil. A sound understanding of separation of church and state is supported by Christian teaching, and religious believers have also long understood God’s will to take into account prudential limits on what legislation should aim to achieve.)

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