Unfortunately, the fundamental question still being argued over is: When does human life begin? The Roe v. Wade decision answered that question, providing a definition of life as survivability beyond the womb. Hence, any act by the carrier of a fetus or their agent that terminates its progress toward survivability prior to that condition is permitted and should not be unreasonably constrained.
But....
What if the mother is a drug addict and her behavior is not terminal to the fetus yet is clearly detrimental to the life it will become?
If we could all agree that "every life is precious" (or even a "sacred gift from God", if you want to put it that way) than the above question is an example of the difficult, detailed debates we should be having, not the straightforward one that is already settled law.
The supposedly smart people on the Supreme Court should respect their predecessors' wisdom and heavy-lifting in answering the question of the beginning of life, leave it alone, and deal with the harder stuff.
5
Thanks for this article.
I do have one issue: Justice Stevens was not "alone" in his disagreement with the decision. Stevens authored the dissenting opinion, but Justices Thurgood Marshall and Harry Blackmun jointed in the dissent.
11
I don't know any law or anything about the Establishment clause.
If Roe is repealed the number of abortions will not decrease. There will be less safe abortions and more coat hanger back alley butcher jobs where often the woman hemoraged to death. Total same.
I am an old fogy and recall growing up in the 50's in my rural town of reading of the horrible stories of these butcher jobs.
Supreme Court decisions are not based on the Constitution but on expediency. Justices decide what result they want and then dredge up a rationale to support what they want.
{The WW2 Japanese internment and Justice Black's dissenting opinion in Cohen in the obscenity case of a person who wore a shirt carrying the message " [naughty word] the draft"] are examples
The Justices should vote to protect women.
The Justices should find a compromise position allowing the cross in Maryland stand.
The cross hurts no one.
Should we remove in "God we trust" from our currency and should we prohibit Congress from opening its sessions with a prayer or should we remove Under God" from the Pledge of Allegiance, which was adopted in the Red Scare idiocy of the 1950's to prevent commies from pledging allegiance to the flag.
Win the big ones.
Protect the woman's right to control her own body.
Do not allow medical providers to refuse treatment on "religious " grounds.
Those who serve the public [baker] or rent accomodations may not discriminate on religious grounds..
7
The idea that anyone could write their own interpretation of "God's will" into US law is a violation of our nation's founding principles. There have been other Democratic Republics, other bills of rights, but one thing that was truly revolutionary about the United States of America was that it was envisioned as a government without a state religion. The founders learned from the institutionalized religious bigotry of the early colonies, where various Christian sects enacted laws discriminating against one another: Anglicans, Baptists, Catholics, Methodists, Quakers, Unitarians ... not to mention other Abrahamic religions (Jews and Muslims).
It's really this simple: No American has the right to write their idea of God's will into law. There are perfectly sound secular reasons to legislate against crimes like murder, theft, and assault. The "Golden Rule" is a principle much older than monotheism.
Further reading: "The Godless Constitution: The Case Against Religious Correctness" (1996) by Isaac Kramnick and R. Laurence Moore.
12
Part of the reason that the Establishment Clause fails to get much traction as regards reproduction is the pathetic level of ignorance of where Catholic doctrine on this subject actually came from.
It is not biblical.
It was introduced by Thomas Aquinas, whose project to rationalize Christian theology involved adopting Aristotle's speculations wholesale. In this case, that meant adopting the homunculus theory, according to which the embryo was a complete and fully-articulated person, deposited in the womb by the father, which had only to grow sufficiently to be born. Accordingly, Aquinas drew the obvious conclusion that personhood began at conception.
Why the Catholic Church persists in adhering to this archaic thought process is entirely beyond me. But the proposition that the fertilized ovum has individual rights is not known to common law, is not any part of constitutional law, and deserves no place in American jurisprudence.
22
We have a lot of sects in America. Probably why we're so populous.
2
This article makes the assertion that it is only religious people, from one particularly nasty religion (Christianity) that opposes abortion. While they may be a big part of it, they are not the only ones.
Please read this article by Nat Hentoff - a very liberal writer for the Village Voice and other leftist publications: https://humanlifereview.com/9680-2/.
There is also a website: https://www.americamagazine.org/politics-society/2017/10/19/atheists-case-against-abortion-respect-human-rights.
Myself, I have a problem distinguishing between abortions (especially late term) and infanticide. If the first is an inconvenience worth killing, why not the second? Iceland is very proud of themselves for virtually eliminating Downs Syndrome. Did they find a cure? No, they solved it with abortion. Isn't ableist supposed to be a bad thing in these progressive times?
Finally, abortion became a "right" in this country - not by democratic concessus, as in Ireland - but by judicial fiat.
1
I'd encourage folks to read this article in todya's NYT and explain why we would force these women to carry a fetus for any length of time, let alone force birth.
I do not care one whit about someone else's personal beliefs. Nor do I think anyone else should make choices about their life, or their pregnancies, based on mine.
https://www.nytimes.com/2019/05/23/us/rape-victims-kits-police-departments.html?action=click&module=News&pgtype=Homepage
8
“To the bill’s many supporters, this legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.” - Kay Ivey, Governor, Alabama
But the life of a convict sentenced to die, is no longer "precious" or a "sacred gift from God".
12
Linda Greenhouse demeans Irish Catholics when she writes "Irish voters, by an overwhelming two-thirds majority, threw off the shackles of the Roman Catholic Church and repealed the country’s constitutional provision banning abortion." The provision banning abortion was not imposed by the Catholic Church with "shackles," but by the Eighth Amendment of the Constitution Act 1983, approved by Irish voters themselves in a referendum, 67% to 33%. Then in a 2018 referendum the unshackled Irish electorate changed its collective mind and repealed the ban, 66% to 34%. The discarded shackles that littered the Irish polling places were, as Ms. Greenhouse fails to report, all gathered up and shipped to Alabama, where in a mass ceremony they were converted from Catholic shackles into Evangelical Protestant shackles.
4
We are under the thumb of religious fundamentalist who force their religious beliefs on others in every day life. Athletes are forced to take a knee while a Christian prayer is said at school. Many town meetings start with a Christian prayer and it has even been upheld by the courts even though it is obviously unconstitutional.
If the anti-abortion movement really wanted to decrease abortion they would make birth control easily available to all women. It is the man's privilege to spread his sperm around without taking any responsible. At one time these bible thumpers were quoting Jesus about the sin of divorce. Since they began to worship in the church of Trump every single commandments has been tossed aside for this one issue of abortion. The stats are that GOP women, even conservative ones, have abortions. Anti-abortion is not pro-life. They have no interest in providing for the baby when it is born. WWJD? Poor women are being forced to carry unwanted babies because men steeped in Christian doctrine are making these laws. It is time to follow the constitution and for lawmakers to stop inserting their religious beliefs into law. Governor Hugh Carrey put his Catholic beliefs aside when he signed the bill to allow abortion in NY because it was the will of the people. Others should follow his example.
16
What about non Christian religions that believe in reincarnation? When is a fetus a human? Logic says at birth because the natural rate of abortion for human fetuses is very high, over 30%. Soul in, soul out, on to the next fetus. If Catholics were logical they would face an afterlife where about a third of the souls had never lived. I'm a big believer in separation of church and state. Religious wars are the most vicious.
10
In a reasonable world religious belief of any sort would not exist.
9
In actuality, remove religion from the equation, and the
entire exercise becomes ludicrous.
Nuff said.
F3
9
What can I say? I have a tee shirt that says:
"Hail Sagan" (That's Carl Sagan.)
3
Great essay.
3
Just wondering about "marching proudly into the future". You seem to be reasonably well educated... do you really believe that the the future is always better than the past?
ebmem secular humanism is not a religion.
2
Religious mythology is likely the most destructive product of the human imagination. Think of the religious wars between different branches of the same religion. All because of fairy tales. There is no firm evidence for any supernatural phenomenon. The only god is Mother Nature. Our founders did not hold religion in high regard. Let’s get real.
8
(Abortion, by the way, was legal at the nation’s founding, and for much of a century afterward.) Not really. Abortion after about 16 weeks was considered depraved heart murder in most states. And, abortion, by the way, was illegal when Roe was decided, and for much of a century before Roe.
God would be angry and embarrassed by all the things done in HIS name. SAD!
3
I belong to a minority religion, Judaism. There is already a wave of anti-Semitism sweeping this country. If the courts uphold these "free expression" laws, those of us who are in the minority will be in increasing danger.
I find it ironic that Ireland is becoming more modern and free and the United States is going backward for now.
55
If these laws go into effect what we know is that infant mortality and maternal mortality will increase. All the supporters of these laws will stand by silently as this happened. Just as they standing by in silence today.
The U.S. ranks 55 in infant mortality rates among all nations in 2017 with a rate of 5.8 deaths per 100,000 live births. Cuba ranks 43; the EU ranks 34; Japan ranks second behind Monaco with a rate of 2.0 per 100,000. Mississippi ranks first in the U.S. with 8.6 deaths per 100,000 live births and Alabama ranks 5th among the states with a rate of 7.4 deaths per 100,000 live births. Source: CIA Fact Book for International rankings and CDC for US States.
9
So it's only "God's will" that human life is sacred? I beg to differ.
3
Justice Steven's conclusion that a legislative determination regarding the beginning of human life is an establishment of religion is completely absurd.
What about a legislative determination about what constitutes death?
1
I'm no constitutional scholar, but from what history I do know, it seems very likely that the Establishment Clause was designed to protect Christians from other Christians. Can't wait to see the Catholics, Mormons, Quakers, Christian Scientists and Baptists duke it out on health care policy.
2
Brilliant, as usual. And, as justice Kennedy commented years ago (I paraphrase): Once you gave the government the constitutional authority to ban all abortions, you give another government that might replace it the ability to make them mandatory.
5
The way to get the evangelical's mind off of abortion is to go after their tax exemptions.
5
Secular freedom from the stranglehold of religion ought to be liberating indeed. Have we forgotten the persecutions, tortures, and killings in the past, all in the name of an 'all-loving God'?
6
The purpose of intercourse is procreation. Interfering with that process is against God's will.
How long will it be before Alabama outlaws condoms?
2
From the title I thought this might be an article on how, if the Supreme Court overturns Roe v. Wade, it would be a decision of Roman Catholics.
2
Republicans' care for the unborn is matched only by their utter indifference to the born.
10
Many people think that freedom of religion means that you can follow any Christian denomination that you choose. Only this limited understanding of religious freedom supports the 40-foot cross in Maryland. In fact, people, the cross is a symbol of Christianity, and if a graffiti-crossed-out cross of the same design were publicly exhibited, many Christians would be outraged. This was the cause, years ago, of the brouhaha over Mapplethorpe's "Piss Christ"
In fact, there are many religious communities in the United States, with differing attitudes toward when life begins, birth control, gay/lesbian/transgender identities, abortion, and many other topics, ranging from the nature of Jesus to the ordaining of bishops. That's why the Constitution - not an amendment, either, but Article VI, paragraph 3, says "no religious test shall ever be required as a qualification to any office or public trust under the United States."
6
Linda, your fawning over Kavanagh makes me think your a gop lover. I have to rethink your articles.
1
Thank you for writing this column. I have long viewed the laws restricting abortion as violations of the Establishment Clause. The notion that life begins at conception is a religious belief. Those who hold that belief are certainly free to refrain from having abortions, but they may not constitutionally use government to impose that belief on everyone else. Leaders of religious denominations should not be using government to impose their religious dogma that they cannot even convince their own members to reliably follow.
I have a different view of the Hyde Amendment because that involves using taxpayer money. If abortion is against some individuals' strongly held religious beliefs, then forcing them to spend some of their taxpayer money on abortions might itself violate the Establishment Clause.
3
@CH That human life begins at conception is not a religious proposition, it is a biological fact. It follows, then, that a fetus is an individual human whose right to life should be protected. The fact that Catholicism prohibits abortion does not make the argument inherently religious (I am not religious, myself). And, contrary to what Justice Stevens says, banning abortion serves the secular purpose of upholding the right to life.
Under legal abortion and birth control no religious people are having their rights violated by being forced to do something they don't believe in. If they do violate others civil rights by forcing non-believers to do what they want, it seems like it opens the window to civil lawsuits to pay for the consequences of limited reproductive rights while Roe is still the law. Neither the Alabama nor the Georgia governments have offered to pay for the mother and child until 18 years old. Family values but they don't value families. Pro-life but not Pro the living.
8
For what reason would any individual want the government to support the tenets of a particular religion? As long as the government cannot do anything to prohibit ones pursuit of the religion of choice, I cannot see what more one would want from the government. If your religion says that other people should behave in a certain way, it is not us to the government to assure that this happens. Your deity of choice has that responsibility, so take it up with him/her and leave the rest of us alone.
10
"It’s taking us just a few years of disingenuous politics to hurl us backward to a place many of us never imagined."
I can well imagine the place we're going. It's called a theocracy. It's a place where only those with the right religion can thrive. There will be other "rights" as well. Skin color, gender, sexuality, marital status, ethnic origins, economic status, etc. Theocracies are not good places to live if one is not part of the accepted religion and doesn't believe in the proper God, morals, or attitudes towards those who are different.
I've read about China's Cultural Revolution and what struck me the most about it was how it was used against the people. Anyone brave enough to speak out against the Communist Party was penalized later. Lives were wrecked beyond repair. (What China was practicing wasn't true Communism. It was another form of tyranny but that's a different story.) A very vocal group of Americans, assisted by some of the richest families and corporations in the country, are leading America down the same path.
We're seeing how money trumps rights every time. Therefore if you're religious and have money you can do whatever you want in today's America. Sadly enough a lot of Americans buy into that until it hits them in their personal life. There's a reason religion doesn't belong in politics: we don't all have the same religion. And many of us are here because our forbears wanted to worship or not in their own way.
5/23/2019 8:16pm
10
I have always been downhearted that my Irish ancestry tied to me to a narrow-minded genuflection to the Catholic Church, not to mention a reputation for drunkenness. The "Fighting Irish" is the mascot of a major Catholic university. Sheesh!
Modern Ireland has redeemed my genes for me. Fighting for individual rights. That's my kind of fighting Irish!
The Founders knew they were ahead of their times when the slipped in the big ideas: "All men created equal" and " and "no law respecting an establishment of religion". Immigrants wishing to throw off the yokes of cultural subjugation in the name of God see us as a a beacon of hope.
Unfortunately the courts are being packed with "conservative" hacks who will not stay true to the bedrock of the Constitution.
10
It's important in this context to understand exactly what today's evangelical advocates for religious freedom are really asking for, when they seek what they sometimes refer to as full and free participation in society.
First, they are using the word "religion" and its variants to refer exclusively to Christianity. This is on purpose: it is a way of saying Christianity is the only true religion.
Second, when they talk about "freedom", what they are saying is, no occupation should be permitted to exist, that would require someone in that occupation, to do anything that might violate evangelical Christian beliefs.
Third, their invocation of religious beliefs is in an important sense arbitrarily at their command. Any reasonable religious person could argue against the premise that what is covered by an employee's health insurance has anything to do with the employer's religious beliefs. But their position eschews the requirement for argument and justification.
Fourth, and this is more significant than it might seem, they are promoting a specific worldview, according to which the employees of a business in a sense belong to its owners, and the employees' remuneration is not something they earned that belongs to them, but rather something that belongs to the owner, where remuneration for labor is in fact viewed as an act reflecting the paternalistic owner's benevolence.
This is not a campaign for freedom: it is a campaign for total dominance.
15
Why people have the moral views they have
and to what extent they are willing to follow their conscience
can be due to a multitude of influences/beliefs.
Certainly the Zygote is alive.
Certainly the Fetus is alive
and certainly an 8th month old babe
in the womb is alive and all of them have Human DNA.
Now you may be against elective abortions
where there is no deformity in the babe
or threat to the mother's life
and you may express your moral reservations
via religious, pacifist, philosophic, secular expressions
but saying that life begins at Conception -
which it certainly does,
does not make your belief religious.
It is not for the Supreme Court to rule against
citizens exercising their beliefs when they vote
or write laws - rather they are to note whether the
law favour , beyond any public need,
a religious institutions.
As always, Ms. Greenhouse you write well,
yet again you fail to mention the loss of the
youngest human lives -
when an abortion takes place.
4
@John Brown
It is quite simply not your business. Period.
You express 'beliefs' when you state 'life begins at conception'.
Beliefs are not facts, nor laws.
39
@John Brown
Since both the sperm and the egg were alive in order for conception to happen, by your definition life started before birth.
There is no compelling reason to define life to begin at conception, and huge legal tangles are avoided if a human is defined to begin when it is viable outside the womb.
40
@John Brown
The layout of your composition
Does nothing to simplify the strength of your opinion.
But it does explain how much you think of your own voice.
I respectfully disagree with the choice you try to fore upon me and mine.
20
Ireland indeed "threw off the shackles of the Roman Catholic Church." Unfortunately for us, the Church dominates our Supreme Court.
23
@John W. - Some things never change. Texas was a hotbed of vehement opposition to "Papist" JFK, too.
Show us where the Catholic justices voted in lockstep on issues regarding this and other issues related to Church and State. And as I pointed out to another commenter, Sonia Sotomayor is Catholic as was the liberal John Brennan.
4
@b Fagan
Kennedy also.
1
I think this article would have been more powerful and on point if it had quoted, analyzed and refuted the actual abortion law enacted by the Alabama legislature.
After all, it is the specific language of this law, not the quote from Alabama mayor Kay Ivey, that the courts (up to and including the Supreme Court) will examine in determining the law's constitutionality.
I am sure US courts will not take into account Irish--or other countries'-- precedent in this matter.
6
Ms. Greenhouse conflates religiosity with humanistic concern for human life. Moreover, she seems unconcerned with the unduly legislative aspects of the Rowe v. Wade decision. She should be concerned. Science changes the situation -- noting this is a legislative function. We know she attended Yale Law School for a course of study for journalists, so why not focus on Constitutional Law, whether it is well conceived or not. Religious right -- this has become an epithet to sling at those with whom one disagrees. How about allies of the anti-religious, secular left -- everything is ok, except intolerance.
1
@Jay65 No she doesn't. The anti-abortion push comes right out of the churches, it's the churches all the way, which actually are guilty of violating their tax exempt status.
35
@Jay65
Roe (not "Rowe") v. Wade was based on the right to privacy established in Griswold.
That decision was not legislative, but constitutional.
13
@Jay65 - The left is not anti-religious. We just know that religion needs to be kept out of politics. So now "secular" has become a pejorative, and "religious right" has taken on some unwelcome associations, but perhaps rightfully so. The far right has become identified with a strict sort of religiosity which has no tolerance for anything that is not like itself. More, it insists that it is OK to shape laws on their beliefs only, which is not a fair representation of all their citizen constituents. The punitive policies being pushed by the hard right are based on religion based morality, but largely driven by money. Think about the private jet owning religious celebrities telling folks it's a right and Godly thing to cut food benefits for those who have little.
10
An interesting point of view, although I think the argument weak and would stretch Establishment Clause jurisprudence to the point of breaking.
Under the author's reasoning nearly any law which furthers a laudable public goal which also happens to be a religious position would be subject to attack. For example, mandatory public education was supported by reference to Prov. 22:6 ("Train up a child in the way he should go: and when he is old, he will not depart from it.") The WIC program furthers the instructions of Jesus of Nazareth to feed the hungry and care for widows and orphans (among others). Would we want to see these and other laws overturned simply because some legislators were encouraged by their religious beliefs to enact them and may have stated in debate that they were, thus incorporating that religious background into the legislative history of the laws? I think not.
My religious beliefs compel me to support a woman's access to safe and legal health care, including abortion procedures, and to trust her and her physicians with the decision of when and how to make use of it. Were I a legislator who passed a law defending her rights, would that law not then be subject to challenge under the author's analysis?
Better to overturn these laws on the basis of women's personal autonomy and right to privacy in health care decision-making and leave religion out of it.
15
Father, her point is far deeper than you’ve portrayed it!
It’s not that any public position that happens to have some religious connection is improper; it’s that it’s unconstitutional when the MAIN purpose of the policy or law is religious in nature, is premised on a religious belief, contrary to secular viewpoints, and is an imposition of that religious perspective on others, including abridging their basic human rights!
In your example, the primary purpose is secular, helping others, you are enhancing their well being not restricting it, and there is broad secular support and belief in the action.
That does not apply to the abortion restrictions and bans that reflect deeply held religious beliefs and being passed with religious justifications, with the laws written by a major religious lobby organization, would severely limit the reproductive rights of women and control their bodies and well being ALL IN THE NAME OF RELIGION.
We need to support abortion rights in the bases you describe, too, autonomy, privacy, civil liberties, but her position is a compelling reminder that it is a narrow religious stance and faith that is driving these restrictions and not a secular, rational, or humane one!
22
@Father Eric F
"My religious beliefs compel me to support a woman's access to safe and legal health care, including abortion procedures"
Better not let the abortion opponents hear you say that. They could use it to turn the tables and claim that Roe vs Wade itself is an illegal establishment of religion.
2
@Marsha Pembroke - Great reply. In judging whether law in constitutional, it is not only the words of the law that is relevant, but also the legislative history of the law. In the case of choice, the legislative history makes it clear that the laws have a religious basis.
8
Let's ignore any religious considerations. When does a "person" will all associated rights come into existence? For certain property rights, it is at the moment of conception - that is when a legal heir to a share of an estate is created. It isn't to much of a leap to other rights.
Certain people who lost fertilized eggs in last year's University Hospital freezer disaster are pursuing a wrongful death claim rather than loss of property. It remains to be seen how their biological, medical, and legal argument will fare. But in the end, if and when the courts grant personhood to a fetus it will not be based ion religious principles.
2
@Hopley Yeaton. You make excellent points. The objection to abortion can easily be grounded in terms other than religious.
Human life begins at conception; there really is no way around it.
So then, on what grounds could the case for abortion be made?
It comes down to rape and incest. If we permit an exception for rape, (all incest is rape) then we are admitting that we do not believe in the truth of life at conception. We are admitting that our objection to abortion is on moral grounds, not legal ones. If we believe that abortion is murder, it must be murder in ALL cases. It cannot be murder in the case of consensual sex, but not in the case of rape.
Only religious extremists would demand a pregnancy be carried to term in the cases of rape and incest.
Therefore, the argument is in fact a religious one, not a legal one, and is in direct violation of the Establishment Clause.
The way the establishment clause is analyzed by the Supreme Court is problematic for prohibiting laws that ban abortion. I don't think the author understands the establishment clause rather, she has a normative conception about what it should mean. With that being said, I wholeheartedly agree that the recent abortion laws are unreasonable for modern women and I hope they are overturned. I don't however, see a problem with laws banning abortion in the third trimester, unless there is serious and imminent risk to the mother's health by having the child.
1
We are living in interesting times. I understand that to be an ancient Chinese curse. In this case we have a very secular culture in combat with many who I'd describe as the american Taliban. the Taliban, read evangelical Christians, have been very successful at taking over a major political party and seem to be fairly quickly taking over the courts. The bulwark of the rule of law may become the rule of the Bible. The Handmaiden's Tale is not so far fetched.
4
This is very personal.
For me, not wearing a religious manifestation is my way of showing my respect for others, and my right to their right to their privacy.
It is my way of saying non verbally, I am not holier than thou.
I accept you as my equal.
Jefferson was at his best when he wrote a friend:
"I do not enquire from others what their religion is,
nor do I burden others with my religion"
Jefferson was never more American,
more republican.
This is when Jefferson captured the very spirit and essence of
America.
The exception proves the rule,
but most of us are united in this
Jeffersonian sense.
We Americans are at least are united in this.
3
I'm glad to see more writing on this, because I do believe there's a religious FREEDOM argument to be had with the side favoring legal abortion.
It isn't just that the anti-abortion crowd is steeped in the language of religion. It's that so much of what abortion is about hinges in BELIEF.
Anti-abortionists wildly proclaim that "life begins at conception" as if that ends the debate. But the NATURE of that life is definitively defined by one's beliefs, many of which are religious in nature.
Furthermore, I contend that if you were to poll religious denominations in the US, you would find amazing homogeneity in attitudes and beliefs about abortion. Not to mention the fact that some religious denominations support the right to an abortion as much a tenet of their faith as those who want to make the practice illegal.
It goes both ways.
5
The SCOTUS is not permitted to endorse secular humanism over other religions.
That is what the Obama administration attempted by requiring that employers provide health insurance at all, and particularly in specifying the abortion and contraceptives b covered. The reason the battle against the Little Sisters of the Poor was so protracted was because once the Obama administration required employers to provide contraceptives free of charge to their female employees but not their male employees, the next step was gong to be to require that employers pay for abortions.
4
@ebmem The SCOTUS is not permitted to amend the US Constitution to enforce any religion over the people. Also secularism is the default position the 1st Amendment demands, when Congress passes a law they should not be coming up with religious reasons for it.
Your example however is very much the SCOTUS choosing religions side, in this case Christianity; to nullify the US Constitution and individual liberty on many by invalid judicial amendment to favor church demands. These Catholic Judges need Impeached over their religious favoritism.
9
@ebmem Oh Please Stop! Secular Humanism as religion? You already lost the argument.
5
@ebmem
Secular humanism is not a religion. Nor is the Constitution.
2
It seems to me the original argument in Roe v Wade focused too much on when life begins rather than on the fundamental rights of women to control their bodies...and so their destinies. This piece feels like a move in this direction, toward a fuller, more modern, more enduring position on the issue. Maybe we can learn from Ireland on this...
6
Freedom of religion was meant as freedom from religion and the normative theological assertions that both chased early settlers here and was to be a fundamental founding principle. We have let this get way off track. if fundamentalist right-wing religious extremists want to sway policy then it is time their institutions pay taxes for that privilege.
16
@Scott
The first amendment prohibited the federal government from imposing a national religion. It did not prohibit states from establishing official state religions. Most of the original states had official religions.
It is fundamentalist secular humanists who have managed to get their religion declared official in the present day.
2
@ebmem Wrong on the 1st Amendment and besides Christians in government already break even this absurdly narrow interpretation with their invocation policies.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"
Examples of religious establishments:
*The Bible.
*Revelation- Or message from god dictated by religious leaders.
*Sin- things religious leaders say actions god would call crime.
*Rituals- Church practices such as biblical marriage.
Example of Free Exercise:
*Whether or not I choose to attend a church/religious gathering.
*I cannot be compelled to fund religious groups directly or indirectly against my say.
*I Cannot be punished or coerced to obey any religious law against my will.
We have a problem in the USA because too much Christianity has gotten shoved into law not because of secularism.
7
@ebmem
You sound ridiculous. Secular humanism is not a religion. Why? Because secular humanism does not include a god of any sort.
And, those of us of no particular religious persuasion would really appreciate it if you'd stop shoving yours down our throats. We're rather sick of it.
2
Abortion is about power -- the patriarchal power of men over women, and the political power of religious laws backed by police, courts, and prisons.
In short, banning abortion to save unborn lives is an excellent cover story for strengthening patriarchy and facilitating right-wing authoritarianism.
19
I have been saying for ages that the Establishment Clause is the obvious and compulsory basis upon which regressive laws against abortion must be struck down. I am delighted Ms. Greenhouse agrees and even more pleased to learn that Justice Stevens made the same argument.
All of these laws have at their root the tendentious notion that “human life begins at conception,” an idea that is not a scientific fact but a mere religious opinion. To enforce the opinion of one faith on the adherents of all others or none is a blatant contradiction of the Establishment Clause. The Supreme Court needs to admit that and settle this matter once and for all.
15
@Moshe Feder
If the state of Tennessee can contend that electronic downloads are tangible personal property and therefore subject to sales and use taxes and the SCOTUS can determine that CO2 is a toxic gas, it's hard to accept that a state cannot make a determination that human life begins at conception.
It is no more reasonable from a scientific perspective to assert that human life begins at viability, which is what Roe v. Wade establishes, than that human life begins at conception.
Law can define anything it wants in any way it wants with respect to the law.
In one sense, the revocation of Roe v Wade would be a good thing. It gives the abortion decision to the doctor, and places an arbitrary limit on the amount of time during which an abortion could be performed. Since 1973, we have learned how robustly an embryo is developing from the moment of conception. We should have a law that gives the woman the right to decide, and does not place any time limit on abortions. (The parlous chaff about babies being aborted up to the moment of birth are not worth wasting the logic on.) Leaving us bereft of Roe v Wade while we struggled to find a replacement is a risk, but we'll probably have to do it and that may be to the good in the end.
1
@annabellina A more solid basis for abortion rights is probably a good thing. The autonomy of a woman's body from arbitrary demands of the state being the most sound basis.
There are points needing better clarity. Human life for example is actually pretty vague. An individual human cell, hair follicle, kidney cell, sperm, etc, is human life. It's human, it's living. The distinction has to be born babies, vs. fetus. Personhood vs. non-personhood. A woman who is a person has absolute agency over anything regarding her body that does not involve personhood, which by definition, can't happen until after birth.
The other issue is the absurd sanctity of religious belief. The court (not this one, as it is clear it is fully capable of disregarding ineluctable logic with a straight face) will eventually come to view religion as simply arbitrary opinion, deeply felt perhaps, but on the same level of meaning as a preference for red as a color. People are free to hold those opinions but not to foist policy based on them, on others.
3
This is a thoughtful and realistic column by Ms. Greenhouse. She writes: "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."
One could go on to the logical conclusion that rest of the First Amendment dealing with religion, the free exercise clause, if it means anything, it has to mean that a person may NOT use his religious beliefs to direct the behavior of any other person with a different belief or no belief.
Yet, in the Hobby Lobby case, the Supreme Court allowed the owners of a business to let their religious beliefs control the benefits they provided to employees.
One additional point bears mention. In both the Hobby Lobby and Master Baker cases, Supreme Court justices adverted to the "sincerely held" beliefs or convictions of the Hobby Lobby owners or the baker. But the First Amendment does not speak to sincerity of belief. It protects the casual believer, the indifferent atheist, as well as the firebrand preacher.
Ultimately, if the First Amendment's strictures concerning religion mean anything it is that if you have a religious belief against something, don't do it. So, if you are opposed to abortion, don't have one. Nowhere does the First Amendment say that just because you don't believe in abortion, you have the right to stop someone else who has a different belief, sincere or not.
11
@Bwana
Obamacare went too far when it ruled, at the sole discretion of Sebilius, that contraceptives were an essential health service that had to be provided free of cost. Whether a woman takes contraceptives or is sterilized or uses an IUD is 100% an election that does not improve her health. To force employers to provide them free of charge was a gift to the drug companies, who promptly raised their prices [with no cost justification] because insurers were obligated to provide all female contraceptives regardless of cost or cost effectiveness.
@ebmem Yet viagra is covered.
1
@ebmem
Thanks for your comment.
With respect, I think you take a very narrow view of how a woman might view her "health." As a man, I don't usurp a woman's prerogative to make that decision.
So, if a woman considers an active sex life to be part of her feeling of well-being and good health and, therefore, an essential part of health care, I think the American sense of "life, liberty and the pursuit of happiness" is expansive enough to allow that.
Employers do not provide anything free of charge. They buy insurance or self-insure which means that the cost of the service plus costs of administration and a profit for the insurer are spread over a universe of people.
Pharma companies have no impediment when it comes to raising prices. It is difficult to extrapolate to the causal relationship you posit. But even if it were so, Pharma companies have raised prices for all sorts of drugs for what you might call an "election."
2
In the Masterpiece Cakeshop case (Colorado baker who refused to bake a cake for a gay couple citing his religious beliefs), the conservative Supreme Court was swayed by the hostility shown to the baker by the a member or two of the Colorado Commission reviewing the complaint. In other words, the words of legislators or executive branch mattered to the analysis. Setting aside the merits of that argument, the conservative members of SCOTUS hypocritically disregard their own rule when it comes to abortion, which is exemplified by the quotation of Alabama's governor in this article. I'm amazed that this argument has not gained more traction in both the academic circles (with law review articles, etc.) and the general public. The anti-abortion, Christian legislators and their supports, with their faux love of our Constitution, are living a lie in front of our eyes. They have been doing so for decades.
12
most of the founders were atheists. the establishment clause was meant to protect us from the imposition of religion and is cloaked in language about guaranteeing freedom of religion.
9
As sad as all this is, one can take heart in the fact that, since medicinal abortion is now available, women will still be able to obtain abortions in all states. Admittedly it will be more difficult for poor women.
If Americans are able to import hundreds of tons of cocaine per year, a couple of pills ordered in the internet should not be a problem.
3
The Establishment Clause is taking a beating from this fraudulent interpretative tool called "original intent."
The first chink in the armor occurred 70 years ago with a case, Everson, involving giving reimbursing parents for transportation costs to a parochial school. 9 judges agreed with this statement: "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable." The relationship, according to 5 judges, was not supposed to be adversarial. Justice Robert Jackson (Nuremberg trials fame) noted "the great purposes of the Constitution do not depend on the approval or convenience of those they restrain. I cannot read the history of the struggle to separate political from ecclesiastical affairs . . . without a conviction that the Court today is unconsciously giving the clock's hands a backward turn."
The "clock" continues to tick backward. Here we are 70 years later looking at a Court filled with judges who view the Const through the prism of their own religious beliefs and may tear down the wall completely. To an "originalist," the words on the page (J. Jackson also shot down the idea that "establishment of religion" meant a "state established religion") and the meaning accorded the Establishment Cl by non-partisan judges with far superior educations don't mean anything anymore. The Supreme Court has become a political/religious institution.
9
Strong work, Ms. Greenhouse. I'm archiving this column so I can pull it out later, to use as ammunition when the Supreme Court goes against the Constitution. Again.
12
The message of Jesus the Christ was not patriarchal or misogynistic. That heresy of female inferiority in the church arose upon his death. That sin and error is demonstrated throughout the history of the Christian clergy unto this very day.
The secondary status of women is a pernicious feature of Christian impact in the world. Roman Catholics have an outsize representation on SCOTUS, and the Church’s argument dominates the abortion discussion. The infusion of the soul at conception is a pronouncement by medieval Catholic clergymen. It is a tacit corollary of female inferiority; if there is a conflict of need between the potential child and the actual female host, the(potential male) child always comes first.
That tacit assumption of fetal priority characterizes the forced birth argument to this day. Have you ever heard any reason advanced why the fetus, always, in every instance, has first call on survival?
If there are two individuals involved; how does recognizing the one automatically put it ahead of the other? How does that work; what is the basis of that universal preference? Because a bunch of medieval guys, with no female input, said it’s so?
It is time the (primarily Catholic) clergy behind this nonsense heresy be unmasked in their pulpits. They should be challenged in every parish at every turn: why is the life of the pregnant girl always subordinate?
14
@Four Oaks Your comment is excellent. Ireland grappled with this exact issue - the 8th amendment to the constitution inserted at the behest of the Catholic Church in 1983 recognized an 'equal right to life' of the pregnant woman and the unborn child. That amendment meant that any attempt to legislate for abortion in the subsequent decades was doomed to be unworkable. If both are deemed equal, in practice the fetus becomes the priority. You cannot have two individuals occupying the same body with both having equal rights to it - at some point, one takes priority over the other and as far as the church is concerned, a woman's life has always been a secondary concern. The Irish referendum on abortion was really a referendum to repeal that amendment, with legislation for abortion coming afterward.
6
The sponsors of anti-abortion laws (mostly Republicans, mostly professed "Christians") routinely dishonor the value of a child's life once she or he is born into the world. Witness their everyday dismantling of safety net programs that protect and enhance the lives of the nation's most vulnerable. They are hypocrites, plain and simple. Can there be any doubt that their actual goal is to ignore the Constitution en route to total theocracy? A pox on them, every last one.
15
Great article. It is certainly frustrating to see swaths of our country embracing sectarian fundamentalism over secularism.
7
The Roberts Court saw fit to effectively excise the first clause of the Second Amendment ("A well-regulated militia ...") when it decided in DC v. Heller that private individuals have an unfettered right to own firearms. No one should be surprised that they are now poised to read the Establishment Clause out of the First. "Legislating from the bench" is for pikers. These guys just rewrite the Constitution.
19
@Richard Leave the phrase in and the textual meaning is that we are allowed to form our own private armies and should have access to any and all arms necessary without any infringement. Pretty sure we don't want that.
1
@Marvin
Private armies are not "well regulated" militias. In the context of that time, the term referred to militias organized under the auspices of local governments. In today's context, that would be state national guards and similar organizations.
Taking the SCOTUS interpretation to its logical end point, SCOTUS would have to invalidate laws against persons having operational tanks, bombers, nuclear weapons, etc.; each of those easily could be brought under the concept of bearing arms.
2
@Marvin, sorry, but you're mistaken. By the definition prevalent at the time, a “well regulated” militia was not a private army but a force organized and controlled by each individual state. The framers' goal was to have state-based armies of citizens rather than a national standing army like the one the British crown had recently used against them. That we now do have a permanent national army is the reason many of us feel the Second Amendment is currently misapplied.
4
It would be most revealing to have a detailed listing of all the specific religious-based groups that will have filed amicus briefs with the Supreme Court when the Administration’s “Religious Exemption Rule” case is ready for argument. If, as expected, the list will be lengthy, how can it be possibly argued that this case does not implicate the Constitution’s Establishment Clause?
4
@John Grillo Because most of these arguments follow civil libertarianism views as well. Hobby Lobby, the Colorado baker being allowed to not bake a cake, these are both supported by CATO and other civil libertarian organizations in a very secular fashion - civil freedom to do what one wants.
Different folks can want the same outcome for very different reasons.
1
The Establishment clause died in 1956, when a unanimous Congress changed our national motto from E Pluribus Unum to In God We Trust, after adding "under God to the pledge
These were non issues at the time, as both of these were passed by both houses by unanimous voice vote, with no discussion of the symbolic meaning. More recently we have the passage of The Religious Freedom Restoration Act in all its permutations. What is forgotten is the single dissent by Justice John Paul Stevens that pointed to the unconstitutional establishment of religion, by the law's preference over atheism. He was tacitly claiming that reverence to God is the "religion" of our first Amendment.
This is no longer an academic exercise, as the nightmare of Sinclair Lewis's "It Can't Happen Here" has come true. I see the perpetuation of the Trump republican party as a strong possibility. Trump's embrace of Christianity is blatantly something that he would describe as satire, or overt lies, which is so natural to him that there isn't even a pang of conscience. His recent executive order provides every employee of a hospital a veto of any action, abortion or assisted suicide etc, based on his/her religion.
We have divided our politics into Left, socialism against Right, free market. A more useful divide is between faith and rationality, which is revering the scientific method writ large- meaning a society based on reality, accepting the pain of existence that no deity can abolish.
19
The notion that 'human life begins at conception' is an inherently religious belief, to be excluded from legislation by the Establishment Clause, is patently absurd.
I'm alive... where did my life start? Any answer other than 'the point at which I was conceived' is purely political and borderline delusional.
This is COMPLETELY separate from the very open and very debatable question of what kinds of legal protections a human life does or does not get before birth. But to deny the blindingly obvious fact that our lives begin as a zygote when two parental gametes successfully converge is just plain silly, an anti-science viewpoint that, ironically, smacks of religious fundamentalism.
7
@Gregory Scott I disagree. Conception was just a necessary but insufficient waypoint on the way to you becoming a living human being. The fact that fertilized eggs in a lab are not considered "people" illustrates this. You were "alive" and "human" when you were an ovum in your mother's body. Life began eons ago and has perpetuated itself in various forms ever since. An egg must be fertilized, implant properly in the uterus, be provided nutrients and other conditions to enable it to develop to the point when birth can safely occur and you become a baby. I believe that an individual human life begins with the first breath, but you are free to disagree. Just don't confuse your opinion and think it is fact.
8
@Suzie shield The "fact" that fertilized eggs are not considered "people" simply illustrates the current bias of the law towards your perspective rather than mine, it means nothing. Interestingly, 5 months ago, we implanted two such creatures in my wife's womb and 1 of them is threatening to turn my life upside down as I type this. The only difference between those 5 celled beings and me is time, they were very much alive. I agree they were fragile, completely dependent on others to survive, and wholly without guarantees to live into the future, but then again, that also describes you & me.
2
@Gregory Scott
The real question is when does human personhood begin. I suspect you know that.
As disturbing as is the particular strain of religiosity used to justify these laws, faith is merely a convenient distraction. It's a reason that sounds better than the real one--after all, the people pushing these bills do not actually behave as if they believe children's lives are precious, not when it comes to healthcare, nutrition, clean air and water, parental leave, or education, and they do not actually behave as if they value the gospel, not when it comes to to helping the sick or the poor or the foreigner or the criminal.
The simple fact of the matter is that these people truly accepted that women were full and equal humans, it would not matter if a single-celled zygote or a six week old fetus were a child. Because there is no other situation in which we allow one person to forcefully occupy or use another's body to survive. Not organ donation, not bone marrow donation, not blood donation. After a baby is born, its parents cannot be forced against their will to donate blood to save its life. So why can the mother be forced to donate the use of her organs before that? We consider this kind of bodily liberty so sacrosanct that we actually require corpses to have opted in in life if there's no family to speak for them. These people aren't passing laws to require blood or marrow or liver lobe donation, or even organ donation at death. So why should they believe that a living woman gets less say over her internal organs than a dead body?
I think we know why.
13
If you favor or oppose a policy, do so based on arguments about the policy itself and not by red herring, ad hominem arguments that the policy is favored or opposed by religious leaders and their followers.
It is true that he establishment clause forbids the federal government, and via the 14th amendment state governments, from establishing an official religion and supporting favored religious bodies.
However, it does not bar legislators and judges from basing decisions in whole or part on religious and moral views -- which would be an impossible standard since nearly all of us base our political/policy opinions largely on our core beliefs which in most cases are strongly influenced by religion.
George Washington, who presided at the Constitutional Convention, wrote the following in his Farewell Address:
"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?"
4
@Benjamin II Right. But whose religion? His constituents were relatively homogeneous, except that many of the Founders were Atheists or Unitarians.
4
The notion that life in the womb is human, individual, and valuable is by no means a purely religious one. We all agree that somewhere between conception and birth a unique and precious human life is formed. We disagree only on the timing. Is it at conception, the first formation of a genetically distinct human cell? When the heart starts beating, because a heartbeat is necessary to sustain life? At viability? At birth? Each of those biological event, not a religious one, and we all choose one or the other of them as the cutoff for when someone becomes "human" enough to merit protection under the law. Notably lacking from the debate is any serious consideration of which of these cutoffs has the most logical merit.
3
@Scott Spot on. Even 20% of folks that identify as agnostic/atheist also identify as pro-life.
Take 1000 random pro-choice folks and start to move the bar: is abortion of a healthy fetus okay at 10 weeks? 20? 30? 8 months? 1 day before birth? I dare say you will lose a huge number of them by the time you reach 30 weeks.
Find 1000 folks that support elective abortion at 6 months of a healthy fetus. Is is okay to abort because genetic tests show it is a female and you want a male heir? Because it shows blue eyes and you wanted a brown eyed child? Again, you will lose folks.
Roe did a few things besides creating the right to abortion. It also clearly stated that at some point the rights of the state to protect the unborn fetus surpass the rights of the woman to abort. They set the stake in the ground at "viability." They also stated that viability can include artificial means.
Roe not only created the right, it created the right of states to restrict such right.
“I lack the social science expertise to explain the opposite trajectories of our two countries: Ireland marching proudly into the future, while the United States is reconfiguring itself into a theocracy that would have appalled our Founding Fathers.”
You and I know, Ms. Greenhouse, that science has nothing to do with this descent into toxic religiosity, neither social nor the hard kind.
The control of other people's behavior is the goal, and declaring to know the will of an all powerful god is an easy cover for carrying out indefensible ideas about what others can and cannot be allowed to do.
Ireland endured centuries of suffering, religion did not save them and was often oppressive. Maybe they have finally said, “Enough!” Maybe we have to suffer a bit more loss of our rights before we become serious about protecting them. I hope not.
I was raised in the Catholic faith, by parents who were not extremely religious. My mother told me she was pro choice when I became an adult. Throughout my childhood attending parochial schools in the 50’s and early 60’s, I can’t recall abortion ever being mentioned. In that sense, a return to the past might be desirable.
8
Alabama is so very pro-life it has the 4 highest infant mortality rate in the US. Once independent apparently life is somewhat less precious. Similar statistics for Louisana, Mississippi and the other states so passionately protecting embryos while allowing infants to die at rates not found anywhere else in the developed world
20
the difference, perhaps, is that the unborn fetus in the womb has not yet been baptised, while the supposedly protective benefits of baptism are conferred shortly after birth. it's a good story, anyhow, while the actual truth around the reasons Christians demand that everyone, and particularly the weakest among us, kowtow to their superstitions is considerably less fuzzy and warm. I think the original understanding of the establishment clause was a reaction by descendents of Pilgrims and other out-of-favor Christians against their persecutions in Europe by the Anglicans, Roman Catholics, etc. which were sanctioned as state religions. the Founders' true motive, perhaps more progressive in the 18th Century, was to prohibit an official state religion and graciously allow anyone to practice any religion with the understanding that unless they were Protestants they were not really Americans but merely guests, tolerated at the majority's pleasure. this was right up there with their recollection of cruel and unusual punishments in England and during the Spanish Inquisition.
1
I ask once again: How is granting tax free status to a church, any church, not respecting an establishment of religion? Why does a bishop get to live in a mansion and ride in a chauferred car subsidized by American taxpayers? How about the TV evangelist who has a private plane to do the work of the lord, again subsidized by the taxpayer. Religon is not above the law, not in a country of laws.
53
@Caded Granting tax free status to churches is a cynical necessity. If you really want to separate church and state, you need to be able to threaten politically active churches with the revocation of their religious tax exemption. It's been used before to good effect. Currently with certain religions all but pledging fealty to Donald Trump, perhaps it's time to just start taxing all the churches since we aren't getting the promised benefit. Maybe the threat of that will pull the other churches off of the sidelines and set us back on a Constitutional path.
3
granting special and undeserved financial benefits to some religions (but not others) is not the same as naming one religion as the official state religion. otoh, operating a phony "University" as cover for a bunko con is not the same as education, even though financial benefits may be bestowed.
2
Power to the People! Well, not unless liberals object and then the Court will decide.
2
@Shamrock It's the conservatives who want to force their religious views on the rest of us!
6
@Shamrock
The constitution was written to protect us from folks like yourself who think if it isn't your way it is wrong. Laws are to protect EVERYONE. If you need a law to practice your religion to discriminate against anyone else you are not correctly practicing your religion. Kind of like ISIS. God created everyone exactly how HE wanted them to be to learn the lessons they need to learn. God does not need your input or corrections.
1
@Shamrock Power to the People. Unless they exercise that power unconstitutionally.
1
The US Constitution, or any nation's constitution, is as only as strong as the people's support.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”
7
What a "fetal heartbeat" really is:
A blob of cells less than a 12th of an inch in size.
I find it odd - very odd - that Republicans are against Medicaid Expansion, which results in a rise in the infant mortality rate, as in real infants...
...but they get very very emotional when it comes to a blob of cells.
But when it comes to raising the infant mortality rate - meaning actual human beings - the same Republicans don't even bat an eyelash.
Also, the pope condemned Trump's separation policies at the southern border. Again, every Catholic Republican in the House and the Senate toadied up to Trump and ignored the pope.
What's up with that!??!?
26
@Jbugko Simple, Republicans and pro-birth (can't call them pro-life, for obvious reasons outside of wanting babies born)voters don't care about anything else. they're tunnel vision toadies and religious fanatics who have never read the Bible, but listen fervently to crack-pot preachers who have both hands in their parishioners' pockets.
1
Isn’t it possible, that on moral grounds, the Catholic and Evangelical denominations have overextended themselves on abortion questions?
Christian philosophy establishes parental choice primarily in the following way:
-A tenth commandment warns against of out-of-wedlock child birth.
-Christian faith promotes marriage, and in turn marriage promotes the conscientious choice of parentage by male and female in advance, and promotes the family ideal of reproduction.
Therefore, under Christian philosophy, parental choice is built-in, and Christian canonical law should be reflective of this.
As far as ‘Thou shalt not murder’ goes, we are not in agreement that life begins at conception, in the modern medical science context but even ignoring that, since a contradiction arises in our faith if we were to adopt this position.
Therefore, applying the Establishment Clause makes perfect sense here, since in the longest view, Christian dogma may change over time, and will always be controversial between denominations.
Secondly, we also have a minority spearheaded anti-abortion league at odds with the majority of voters in our democracy, and the legislatures and governors should operate respectively to this in the present tense. Has the public turned on the abortion question in this democracy?
1
aw, they claim to honor the commandment not to kill, yet generosly support the largest, most lethal military the world has ever seen, and generally also the supposed right of Americans to run around armed to the teeth with guns having no other purpose than to kill or threaten to kill. like all superstitions, do not expect their positions to make sense; it is about power over others.
5
@Pottree
Thou shall not kill does not mean you can't defend yourself, your family or your community/nation. It's a violent world and most religions realize it.
There are no other circumstances - none - where one human being in the US can be legally required to donate any part of his or her body to sustain the life of another. By law, not even a pint of blood or a fingernail pairing can be taken from you without your consent even it it saved 1000 lives. If the father's blood or a kidney could save the fetus' life and he doesn't consent, the fetus dies.
Only in the case of pregnant women would the state be permitted to legally co-opt the body of a living, viable, independent person - at HER risk - in order to sustain the life of a non-viable being.
How does that make any sense?
41
@Anne in St. Louis
Thinking about it,
now that you bring it up,
there should be laws where we have to
donate what we can spare to save the lives
of others.
1
@Anne in St. Louis
In spite of having followed this issue for 50 years, I was so pleased to hear this wonderful subtle argument for the first time. Thank you
5
@John Brown
Except that you don't really believe that: it would for example compel Americans to give a substantial portion of their income to rescue the most vulnerable abroad (see https://www.thelifeyoucansave.org)
Anne's point forces us to see that this is about assuming and asserting control over women's reproductive freedom, plain and simple. They're the ones whom we feel we can kidnap in the cause of life.
6
Many forget just how ill-at-ease much of the American public felt during the Bush administration with the political incursions of religious interests. And after eight years of it, the public was truly fed up. Yet the Trump administration seems to leverage such religious appeal even more heavily than the Bush administration in the maintenance of its political base.
Does the Trump administration have any idea what sort of backlash it's in for?
9
Do those whose Christianity is opposed to war have a right to not pay taxes for a large military?
15
Atheists must admit that, for better or worse, God has the same sort of reality as Spiderman or the Lone Ranger -- a figure that some people use to make moral decisions, asking what the figure would do as a way of figuring out what to do.
For many people, God is a figure that lays down rules and is not interested in the actual results produced by these rules or swayed by a discussion of these results. A person who behaves like that is a tyrant. The tyrant is sometimes wise, but the tyranny inhibits the subjects from developing any sort of wisdom other than the sort of wisdom of followers.
We are told to do what God says. But God does not have any higher power telling him (her) what to do. So if we are made in the image of God, we should need a higher power telling us what to do as much or as little as God does.
We are told we are children of God. But the essence of childhood is to grow up, to grow out of it, to become adults, just as the essence of the tadpole is the frog. If we cannot grow up, then we are not God's children, but rather God's pets, forced or enticed or trained to obey rules we are incapable of understanding. The rule against abortion is one of these rules.
14
@sdavidc9
And if someone said the same about
rules against murder, rape, slavery
would you say the same ?
2
@John Brown
Rules against those are societal choices, not commandments from God.
1
Absulutely right!
The Establishment Clause says “Congress shall make no law respecting an establishment of religion.” But we don’t hear much about it these days. It has shrunk noticeably at the hands of the current Supreme Court, in contrast to the First Amendment’s other religion clause, the Free Exercise clause, much in favor with today’s majority. The only Supreme Court justice who ever linked abortion and the Establishment Clause was John Paul Stevens, now nine years into retirement and, at age 99, author of a new memoir.
The Establishment Clause says “Congress shall make no law respecting an establishment of religion.” But we don’t hear much about it these days. It has shrunk noticeably at the hands of the current Supreme Court, in contrast to the First Amendment’s other religion clause, the Free Exercise clause, much in favor with today’s majority. The only Supreme Court justice who ever linked abortion and the Establishment Clause was John Paul Stevens, now nine years into retirement and, at age 99, author of a new memoir."
When life begins ahould be exclusively a scientific determination.
All the "life begins at conception" or heartbeat hooey is exclusively a spiritual/religion based article of faith!
Sentience/Self awareness is more present in any farm animal or even a plant than an undeveloped fetus.
3
One essential problem here is that the question of "when human life begins" is not an empirical or scientific question. We all bring different kinds of considerations to that question. This is just inevitable.
2
@Nathan Funny, every other society that has been deemed civil could answer that question because the first question any society must answer is who comes under its protective compass.
2
I think Ireland supports abortion up to 12 weeks and then, thereafter, if there is a risk to the mother. Seems practical and measured.
11
This column is a perfect example of why right-thinking Americans hate the disgusting attitudes liberals bring to American life.
I am continually amazed at the lengths liberals will go to to protest the execution of the most vile rapists and murderers, yet they celebrate the execution of millions of the unborn.
3
@Billl
Your posting is filled with unsupported assertions(to put it mildly). I'll pass over most of them but where did you get the notion that removal of a lump of cells without a brain or organs is an execution?
10
@Bill
Aren't those millions of unborn going straight to heaven?
2
@Bill
Life is complicated. Comparing an adult human being with a ball of cells in the early stages is a bit like comparing apples and oranges.
9
An excellent opinion piece, and a topic overdue for pointed discussion, i.e., the extent to which this abortion debate depends on the adoption or rejection of religious values.
6
Yes, but Ireland doesn't have Republicans and doesn't have so-called conservatives on its Supreme Court who say they respect precedent in their confirmation hearings and then overrule those precedents they don't like when they're on the bench.
Ms. Greenhouse writes that abortion was legal when the Constitution was written and ratified. Therefore, the drafters were aware of it and obviously did not prohibit it. How are the "original intent" people going to get around that? Or will they ignore that fact, just like they ignore facts and precedents which don't fit their practice of deciding the result they ideologically want and work backwards to justify that result.
16
@Bob
Where is abortion mentioned in the Constitution ?
1
One has to distinguish between situations where the decree of a bishop or other religious authority automatically has the force of law (which is clearly a violation of the Establishment Clause) and situations where the religious beliefs of individual voters guide their choice of which candidates and parties to support (which is clearly not a violation).
I well recall when I was a student at the University of Minnesota back in the 1960s, watching in a grad student lounge the TV newscast of the funeral of the chairman of the University's Board of Regents. He was a Catholic, and the funeral was held at the St. Cloud cathedral, attended by a delegation of other regents and state officials. A fellow grad student was indignant at this presence of an official delegation in the cathedral: didn't we have separation of church and state?
I have noticed that over the years public issues of interest to Catholics are more likely to be analyzed in terms of the Establishment Clause than equally public issues of interest to Protestants.
2
@Charles Chotkowski
Thank You.
1
Ms. Greenhouse, as usual, eloquently states what so many of us have been thinking all along: we often turn to the well-worn phrase of "separation between church and state," but we mean exactly what the establishment clause declares. The religious zealots have hijacked our democracy and along with it, the GOP. These zealots do not speak for the majority of us. Those of us who support the establishment clause do not impose our secular beliefs on those who are guided by their religious teachings, so we don't understand why those who are guided by their religion can't extend the same courtesy to those who disagree with them. The "murder" argument simply holds no water for those of us who believe in an individual's right to make his or her own decisions concerning mental and physical health. I know that several of the conservatives on the Supreme Court disdain the idea of reading such a lucid piece of legal reasonableness as Ms. Greenhouse presents here, but I hope that at least one, maybe two, are open to respecting this argument and more important, respecting the tenets of the Constitution.
16
Unfortunately, the author should have done some research to understand what the Establishment Clause says (or doesn't say) what its purpose actually is.
1
@Bill Hobbs In 8th paragraph Linda Greenhouse wrote:
'The Establishment Clause says “Congress shall make no law respecting an establishment of religion.”
6
@Len15
Unfortunately she doesn’t know what the Supreme Court thinks it means. Her opinion will not be cited as authority in Court cases.
@Len15 And again - it is about not setting up an official church - e.g. such as the Anglican Church in England - or preventing the free exercise of one's religion. Our Founders, who were for the most part deists, did not want to sanction a particular church, but they certainly had no intention of removing religious belief from the public forum.
2
"...every life is precious and that every life is a sacred gift from God.”
This coming from the governor of the state that has one of the highest infant mortality rates in America, ranks 46th out of 50th in healthcare, and refuses to expand Medicaid. It ranks 3rd in number of low birth weight infants and 9th in teen pregnancy rates. Life is precious to them until that life requires resources that must be provided by the state. Then it becomes somewhat less "precious"..
35
Excellent essay.
The Establishment Clause is also the reason
members of Congress should not be allowed
to wear visible manifestations of a religious establishment
in the people's house.
8
@David - why infringe on the rights of elected officials?
1
@b fagan
religious manifestations historically were not worn
in the American House of Representatives because America is a secular republic, founded on the principles of the Enlightenment.
It is what America is all about.
This is a sound principle in America that has served
America well since 1789, and now allowing elected members to wear manifestations of an established religion IN THE PEOPLE'S HOUSE IN AMERICA was a betrayal of the wall of separation of Church and State.
The Founding Fathers would not have been amused.
5
@David And the Free Exercise clause is also the reason members of Congress should. So how are you going to adjudicate that standoff? Or were the Founding Fathers schizophrenic by the time they reached the end of the first clause of First Amendment? Or, JUST MAYBE, they inserted non-establishment as a means to achieve free exercise, which means they were not agnostic, not irreligious, and not intent on denuding the public square of religion or its influence, but that these are subsequent, judicially-imposed aberrations.
1
There would be a problem with religious conscience if states or the government passed laws forcing women to have abortions, or forcing men to marry other men. No one requires Mormons to drink coffee. No state or municipality is forcing women to cover their hair in public. These things are not happening. That should be the end of the story.
Regarding the attempt to allow people to treat others shabbily because of some moral or conscience objection - there are an awful lot of things in the world that people feel that strongly about - so again, pushing a law like this is inviting chaos.
6
@b fagan "There would be a problem with religious conscience if states or the government passed laws forcing women to have abortions, or forcing men to marry other men. No one requires Mormons to drink coffee. No state or municipality is forcing women to cover their hair in public. These things are not happening. That should be the end of the story."
Um... so forcing women to carry a life-threatening non-viable fetus to term and undergo the danger of childbirth is not a "problem" on your planet but forcing a Mormon to drink coffee would be?
What is wrong with you?
6
@Anne in St. Louis - Um... You missed my point which is that existing law isn't forcing people to do things TO THEMSELVES that they have moral objections to. So pushing a law like the one Trump and the religious far right want is not needed or useful. A pharmacist isn't required to use contraception, so they have no right to object and need no extra protections to continue applying their conscience to their personal conduct. Got it?
1
Thank you, Linda, for this essential reading. Lemon v. Kurtzman was a case that, from the moment I first read it in law school, has held a place near and dear to my heart.
For everyone's sake, let's hope another generation of young Americans grow up learning about the importance of the Establishment Clause.
11
Religion rears its ugly head on the Supreme Court and in a number of states that routinely deny Constitution rights to atheists. Atheists have rights, too. The Constitution guarantees them.
22
Let's forget the Establishment Clause!
About 52% of Americans are Protestant, 24% are Catholic, 10% are agnostic/atheist, 2% are Jewish, 2% are Mormon and 1% are Muslim.
But the politically partisan Supreme Court of the United States has six Roman Catholic and three Jewish Justices.
There are three female and six male justices. Even though America is majority female. And there has never been a black female Justice.
While America is 13% black African American there have been only two black Justices on the Supreme Court.
The Supreme Court of the United States is the least democratic branch of our divided limited different power constitutional republic of united states. The law is not fair nor just nor moral nor objective.
Law is gender, color aka race, ethnicity, national origin, sectarianism, socioeconomics, education, politics and history plus arithmetic. African American enslavement and separate and unequal while black was as lawful as the invasion and occupation of brown Native pioneers land.
'The law is an ass' from 'Oliver Twist' by Charles Dickens
9
@Blackmamba
I think “The law is an ass” was said by a low life who would as soon pick a pocket than work for wages.
I think I would rather have law made a mixed group of legislators who disagree than a king who decides law unilaterally.
4
@Blackmamba
Pew Research has shown, that just like in "communist" Europe, the fastest growing religious group in America is the unaffiliated.
One just has to wait.
1
@Blackmamba SCOTUS justices do not represent you or me, they represent the Constitution. These nine Judeo-Christian judges are often on different sides of one another but they all harken back to the Constitution.
Their "religion" that creeps into their decisions is Originalism, Textualism, Activism and such. These views are not conservative or liberal, they are philosophical.
Don't get too hung up on the exact case either, look at the precedent. Janus does not must mean a conservative does not have to pay union dues, it means ANYONE does not have to pay union dues, even a progressive working for a conservative minded union.
What most disturbs me about the issue of religiosity is this nonsense about Christianity being under attack in America. Christians are the ones in power! It's the most popular religion in America! They're confusing a lack of dictatorial control with being persecuted, ironically persecuting people like me in the process.
I'm an atheist. I've been an atheist since I was a child. I was bullied in school for many things, but one of them was being an atheist. People refuse to understand atheists and think we're immoral or stupid. They treat us like their religion tells them to, harassing us if they can't convert us. Most Americans would rather have a Muslim President than an atheist President, even in a country gripped by paranoid Islamophobia.
Every time the Christians complain about not being able to exercise their religion, it infuriates me and reinforces the legitimate feelings of persecution atheists have. And when the Missouri legislature—which is supposed to represent people like me in addition to the Bible-thumpers—says that Missouri is a pro-life state and that it's a state where people believe in God, they're saying that I am not a legitimate citizen and should not have the right to irreligion.
That's one thing people don't understand about the Establishment Clause. It also protects atheists. We're not a religion, but we do share a deeply held religious conviction that there are no gods. Our convictions, apparently, mean that we don't deserve representation.
36
Thanks for the post. Although my family was religious, my uncle, a deeply principled man, was an atheist, and although I did not follow his path (he became an atheist after his experience in war), I have always thought of him as exemplary, honest, and of the highest kind of intellectual and spiritual integrity. His hard won atheism is superior in my book to the cheap religion of so many, and so I always defended him and I have always admired him.
However, I think this matter of persecution actually does have two sides. If you work in the universities or at Google or Facebook or in most of the elite bureaucracies, you will often find that religious people who make themselves known are treated "differently." I'll leave it at that. Yet if you are non-religious and happy and well-integrated at work, and you see these religious people passing laws with which you disagree and which seem surreptitiously religious to you, then you have a very different framework and you might feel persecution.
I myself have pretty good evidence that these feelings of persecution on each side have a pretty good basis. I don't think that this can be neatly or easily cleaned up. I do think that the establishment clause is one useful tool for keeping things under control.
1
@Andrew Roberts There is some truth to this. People need to realize that you can have humanistic morals without being religious. 20% of atheists/agnostics are pro-life, thus based on their moral principles.
But, there is a difference too. Many laws are based upon religious rights and separation and atheism is NOT a recognized religion.
Thus you are not going to get tax free status on your atheist gather place. You are not going to be able to make a claim like Hobby Lobby did because there is no well known organized moral position akin the their religious position.
So if you were the Colorado baker and an atheist and did the same thing because you think gay marriage is immoral, you don't have a valid argument. But a deeply religious Colorado baker does.
But, just because you and I do not belong to an organized religion does not mean that those that do should be infringed upon. A key belief of the founding fathers was religious freedom.
Now, all of this is a balancing act, but it is not unworkable or even inherently unfair.
1
@Andrew Roberts
There are many anti-abortion atheists, and few atheists support late term abortions.
1
If God's so high on every life being sacred, how do you account for natural miscarriages?
9
@Brian Since the mortality rate for humans is 100%, why should we distinguish about HOW you get dead, e.g., natural cases versus killing?
2
I pay taxes. Quite a lot of them, actually. I don't want my tax dollars used to support religion - any religion whatsoever - any more than the religious bigots want to use their tax money to pay for procedures they object to. The difference between us is that I have a Constitutional Amendment argument (no establishment of religion) and they don't. They just have their superstitions, prejudices and false morality.
29
@RH You do not have a constitutional argument. Your tax money does not go towards establishing a government religion.
1
"Back in Alabama, the state’s governor, Kay Ivey, issued this official statement when she signed the abortion ban into law: To the bill’s many supporters, this legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.'”
I grew up in Alabama during the time of segregation, the Birmingham church bombing, Bull Connor and his hoses and dogs, the KKK, etc., and I have to ask: When did Alabamians develop this deeply held belief? Or are we to implicitly understand that this belief embraces rabid 'Christian' Caucasians only but excludes the LGBT community, Democrats. the poor and other undesirables?
Don't get me wrong, I love Alabama: its rivers and lakes and shores and woodlands and rolling hills and Black Belt and flora and fauna...it is indeed Alabama the Beautiful. But, oh Alabama, I'm losing hope that you'll ever make me proud before I die.
Linda Greenhouse, thank you for this column. Keep shining your reasoned light. Please.
29
We also need to end religion's special exemption from the marketplace of ideas.
Imagine if state legislators somewhere passed a bill banning air travel because of a sincere belief that the earth is flat and a genuine concern that jets might fly off the edge. Would we hesitate for an instant in questioning the basis for that legislation?
17
Linda Greenhouse's column today should be read in concert with a long piece in yesterday's Washington Post about one Leonard Leo, a staunch and fervid Roman Catholic, who has raised millions of dollars of untraceable funds to lobby the Trump regime to fill federal judicial vacancies with jurists who are staunch and fervid anti-abortionists. Two of Leo's "recruits," Gorsuch and Kavanaugh, now sit on the Supreme Court.
Very few Americans know about this hidden activity, designed and intended to capture the federal courts and turn the judicial branch into a political network owned and operated by right wing extremists and powerful Catholic lay and clergy.
If only these people, Leo among them, had spent more time and effort uncovering the widespread and disgusting actions of Catholic priests, bishops and Cardinals to sexually abuse decades of young boys -- of which I was one.
31
Thank you for writing this. Voters and the courts need to be reminded that religion and religious fanaticism are terrible bases for policy in a pluralistic secular society such as ours.
10
The Founders knew that if one's beliefs are forced on others then the same would happen to them. How long until the GOP has to use the sword to keep the rest of the population in check because it doesn't want to live under institutions that it has been subjugating?
8
Abotiton is a pretext used to demagogue Roe and Doe, premised on a Constitutional right to privacy.
Do those who oppose SCOTUS imposed rights to privacy also support other governmntal interventions, like the elimination of child labor, the imposition of the 8 hour workday, unemployment insurance, workers' compensation, Social Security, Medicare, the natioanl highway system, etc? Do they reject extension of Medicaid?
Please ask the governors of the states that impose the ban and make abortion criminal to answer.
3
Yes! Exactly! As a not-at-all-religious person who grew up in the Bible Belt, I have been puzzled for 30 years about why people don't make more of this exact Constitutional point, which seems so obvious to me. Thank you for articulating it so well.
11
According to American criminal law generally, both federal and state, there is a principle of justification for homicide. Two of them entail the defense of one's self or the defense of another, one allows a person to protect his or her home. I have never heard any anti-abortion advocate complain that our criminal law has an allowance for homicide. Moreover, there are few, if any, anti-abortion advocates who publicly denounce the death penalty. This proves to me that "the sanctity of human life" is completely irrelevant to the anti-abortion argument. If justification for homicide can exist without condemnation in the criminal law why is it immoral for a woman who has been raped, just one example, to seek an abortion? In this situation and others I would argue that abortion is justified. And ignoring the need to care for a child's welfare after birth? Well, that just puts the icing on the cake. Anti-abortion advocates should tell the truth about their beliefs.
9
Yes, but does Ireland allow abortion until the point of birth like the state of New York?
Most Western European countries allow elective abortion only in the first trimester.
I believe many Americans would be comfortable with the way abortion works in most European countries. The new laws in Alabama and Georgia are a pushback against what's happening in states like New York and Virginia.
2
@Ian
It does not good to repeat that lie about recent NY State law. It does not allow elective abortion in the third trimester.
All it does is reaffirm that abortion can be justified at any time if continued pregnancy is a threat to the life of the woman or if the fetus is too deformed to survive.
20
Thank you for this important column. And thank you for reminding us that the establishment clause remains an important part of the first amendment. While I imagine that the majority of high school students, after studying American government, can define both the establishment clause and the free exercise clause. (It is not difficult.) The fact that those self-identified "originalists" who seem to occupy so many positions in the judiciary all seem to have forgotten one of them gives the lie to the notion that they are anything but religious bigots bent on forcing (establishing) their point of view on the rest of us. They are certainly not constitutional originalists.
14
After reading your piece and reviewing the current news cycle, I cannot find a convincing argument that abortion, is a step back. The issue with the propriety of abortion is simple, and it can be answered by answering the question: when does life begins? How are people willing to disregard the possibility that an aborted fetus may be living and entitled to the rights our founders hailed. I understand that sometimes pregnancies are unwanted, poorly timed, accidental and even imposed. This is a tragedy! The suffering is real. However, two rights often clash, and society must weigh and accept one over the other. Because, we accept that once delivered a child cannot be terminated, then the question must be answered: When does the child acquire life and by virtue of it the rights our fathers hailed. This is not an easy question, but it must be answered legitimately, convincingly and authentically because if it is not, even if it remains in doubt then abortion cannot be tolerated, because convenience cannot outweigh life. On that, society must answer a resounding never even understanding that the outcome will cause individual suffering and hardships, but the opposite would result in a selfish and cruel society. The dignity of life must come above all other rights since without it no other right is important. So, pro-abortionist must answer the question: when does life begin?
3
@Jose Companioni
When the dogs dies and the kids move out.
2
Life begins with the sperm and the egg. Both are living cells. Both are human.
They are not people.
When they come together and produce a zygote- still not a person. A fetus with no cerebral cortex and no ability to reason, feel pain or feel fear- not a person.
By the time it develops these attributes, it becomes a person. Women don’t electively abort at this stage; they abort because they have to.
10
@Jose Companioni
No, we do not have to engage in theological debates about when life begins.
Life is a continuum. A sperm and egg are as alive as a fetus, and none are prescient.
A "selfish and cruel society" is one that subjects half its population to slavery to their own wombs.
14
In my 2014 book of essays ("To Care Enough") I have one called "Pro Life, You Say?" At one point I posed this variation on a scene commonly discussed in university ethics and philosophy classes:
"A building is burning ferociously in your town. On the second floor is an office worker who cannot escape the flames. On the floor below, there is a facility housing a collection of fertilized human egg cells. Time is of the essence. The building is on the verge of collapse, and the on-site captain warns there is time for only one rescue."
My text continues: "What would you want the captain to tell the firefighters to do? My question is intended to leave it to you to do the hard work of defining for yourself what "Pro-Life" actually means." Or Pro-choice, of course.
9
@BF Yeah because that’s the equivalent analogy. It’s not and you know it. In the ultra rare case that a fetus is endangering the mother 99% agree and it’s already Licensed primary standard care. How about old guy and child on different floors? Jew and Gentile? Brown and Black? White Dem and White GOP? Male and Female? Smart and Dumb? Stop cause your ethics smell!
2
@sad for you posed a thought experiment that demonstrates for anyone who engages that we do not actually believe (and therefore would not find making the decision difficult) that fertilized eggs have the same value as a fully developed adult human being. It may be helpful for you to understand why you didn't understand this.
3
What a wonderful op-ed!!!!
It reminded me that although Antonin Scalia and I shared a love of Grand Opera, fine dining and informed conversation he was a 15th century Catholic and I am a 15th century Jew.
Scalia wished to marry his 15th century truth of dogma with 20th century legal sophistry.My paternal ancestors fled the Inquisition and I understand a need for Kabbalah and its mysticism and a human need for magic to temper scientific theory and its unyielding truth.
I feared the return of the Inquisition but Scalia prayed for its return. I suspect Scalia and I weren't the only ones expecting the Spanish Inquisition but I suspect neither of us expected bathetic farce and Ronald Reagan's Flying Circus.
12
Thank you, Linda Greenhouse, for reminding all of your readers of what ought to be – but clearly isn’t – obvious to every American.
The Establishment Clause was such an important part of what the framers of the Constitution considered to be the gist of the new United States of America, that it was made the first clause of the First Amendment in the Bill of Rights, comprised of the first ten Amendments, and the Establishment Clause contains one-third of the words in the First Amendment.
Those of us trained in the law know the Establishment Clause well, but it is useful for other readers to visualize and think about it:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Some American Christians -- evangelical or fundamentalist protestants and Roman Catholics -- have consciously hi-jacked the First Amendment and deleted the Establishment Clause without having any legal right to do so.
Judges who have participated in this hi-jacking have violated their oaths of office by imposing their personal religious beliefs on a nation.
Millions of Americans – particularly the women of our nation – have suffered by the willingness of a relative handful of judges to ignore the law and to rule according to their religious bias.
25
@sdw Do you believe that outlawing plural marriages and insisting that Utah not allow them before admitting it to the Union was and is "prohibiting the free exercise thereof"? Was that an example of "the willingness of a relative handful of judges to ignore the law and to rule according to their religious bias"?
@mikecody It sure seems so, at least superficially. That would not justify ignoring the law and ruling according to religious bias in other circumstances and might easily be rejected as a ruling in the future, just as other holdings thought later to be erroneous have been disavowed. So what is your point?
2
@mikecody
Your questions about polygamy have been favorite ‘what-about’ arguments of conservative Republicans since a dissenting opinion in 2003 by Justice Antonin Scalia (whose religious bias against abortion and his disdain for the Establishment Clause was legendary) in Lawrence v. Texas.
Scalia mentioned anti-polygamy laws in a list of sex-related laws that would be vitiated if a Texas law against sodomy was ruled unconstitutional.
The short answer to your questions, mikecody, is “No.” Today, all 50 states outlaw polygamy, but there is no direct federal statute. In 1890, The LDS Church banned polygamy, and this complied with the wishes of Congress. Utah (which is the only state in which a majority of the population belongs to one church) became the 45th state in 1896. The remaining 5 territories also had laws against polygamy.
Polygamy is different than, say, gay marriage. That is because – and this has nothing to do with religion – in polygamous marriages the Equal Protection clause is violated because the women must share the attention and benefits of one man. There are a number of other reasons, mikecody, so don’t be lazy like Donald Trump. Do a little reading on your own.
2
The Establishment Clause was to preclude a Church of England being established here. All Founding Fathers were deeply religious men. To argue otherwise ignores all contemporary writing and documentation of the passage of the Bill of Rights.
History and facts matter.
7
@EWG Yes, history and facts do matter. In the 18th century U.S., abortions were generally legal under common law until "quickening" (usually described as the point where the mother could feel the fetus move). Further, I would contest the "deeply religious" part of your statement; a few were atheists, and the largest group were deists who rejected the mysticism and "miracles" of the Judeo-Christian tradition. Finally, the idea that the Establishment Clause was merely to preclude the establishment of a Church of England in the U.S. is simply not supported; that is, at best, the most restrictive interpretation of the clause, but is far from a certainty.
13
@EWG, Your point is unclear. Are you saying that only the establishment of a State church would violate the first amendment? In which case we should make all those churches whose names include "American," or "of America" change their names.
Or are you saying that being "deeply religious" somehow grants immunity from the first amendment?
Or are you saying that the religious feelings of the founders somehow modifies the meaning of the first amendment.
What part of "no law" seems ambiguous to you?
Unlike the ambiguity of the second amendment, which has generated much argument, "no law" seems pretty clear to me.
A person's religious feelings, deep or shallow, are his or her own prerogative, but when they are made the basis of the law of the land they are in clear violation of the first amendment, and should not be evaluated on the basis of anyone's religious belief ...Anyone's!
8
@EWG
Religious? That's debatable.
Many were deists who had little or no respect for religion.
History and the facts show us that there is no mention of god in the Constitution, and that the only mention of religion was to exclude it from government.
9
It is disheartening that so much of our preoccupation and our discourse are anchored on the interpretation of ancient texts still treated with enormous reverence, for historical reasons, and because many believe them to have been divinely inspired. But this is a secular nation, whose constitution ordains separation of church and state. The founders’ understanding of this is evident in the Treaty of Tripoli, approved by the Senate and signed by President John Adams in 1797 which states among other things that “… the Government of the United States of America is not, in any sense, founded on the Christian religion…” In spite of this we are still plagued with disputes with a religious basis especially about reproductive health.
It was a stroke of enormous good fortune that our constitution was written by disciples of the enlightenment.
18
Bravo, Linda Greenhouse, and thank you for reminding us that abortion was legal at the time of the founding of our country. The framers never dreamed that "personhood" would be conferred on any organism prior to birth. That seems to have been cooked up some time after Roe by those who make money from the anti-abortion "movement."
22
@laurenlee3 I might remind you that slavery was also legal at the time of the founding of the country, and the idea that "personhood" could be conferred on any person of African descent was also never dreamed of.
5
@mikecody
Sorry, your analogy doesn't hold; slavery was immensely controversial at the time of the founding, and the idea that individuals of whatever descent were persons was not controversial for many.
If the point is that just because almost everyone believed X at some point doesn't make it right, I'm totally with you. Too bad then that so much of the judicial hell we've been subjected to in recent years has come to us courtesy of the zany doctrine of originalism.....
3
@John
That was precisely my point. And I do not subscribe to Originalism, but Textualism. Whatever is written into the law is the law. I does not matter what was thought then, or what is thought now; if the law needs to evolve that is the function of the Legislative and Amendment processes.
If I've got a choice between the "shackles" of a Church opposed to a wanton attack on pre-natal human life and a secular lie that such life is essentially meaningless, then I'll take the pro-life Church. That's the basic choice Ms. Greenhouse offers her readers. She has always tried to mask her own pro-abortion commitments behind tendentious legal sophistication, but those who see the real conflict at work here and reject her side of it, her ideology is to us just exactly that, and nothing like a deep merger of law and human life, without which law is not itself but raw anarchy, just as Justice White said in Roe v. Wade.
3
It is not in your purview to impose your beliefs on others, period. Each person must choose their own path with the help of medical and spiritual advisors. Women are not free and equal to men if they don’t have the right to choose.
32
@David A. Lee
It is quite simply not your business that a woman should choose to abort. Period.
Personal beliefs are neither facts nor law.
8
Of course, as a man that’s a situation you will never have to face. Very convenient.
7
I believe that pro-life people should realistically call themselves pro-birth. If truly concerned with the "life" part of the label, they would support pre-natal care for mother and baby, post natal care, early childhood education and nutrition, not to mention psychological care for victims of rape or incest. If pro-life, they should be willing to support quality education to encourage the success of these individuals and thus for the betterment of their state in general. But many of these states that want to deny abortion are ones that have very low taxation, and choose not to invest in betterment - just in control of women's lives. This conclusion is made clear when they also want to deny access to birth control.
40
@ellesse Perhaps "pro birth" might be an appropriate name, but, I think the descriptively more accurate term would be " forced birthers"
3
The only Constitutional issue SCOTUS is concerned with respect to Roe is this:
Where does the authority to legislate with respect to abortion lie - at the State level, or at the Federal level?
That's it.
What's religion got to do with it?
Religious leaders led the crusade against slavery and for civil rights - are those results invalid?
Of course not.
For the record: I am pro-choice and an agnostic.
3
@DennisG
Religion is the driving force behind the claims that life begins at conception, and that a woman's obligation is to the growth inside her and not to herself.
When religions do good they are praised. When they deprive others of their rights they deserve to be denounced.
23
@Jerry Engelbach The deeper question is who decides what is good and what deprives others of their rights?
2
@DennisG
Yes indeed. But it was The Civil Rights Act of 1964 that provided a federal legal leg for the religious leaders to stand on...
1
"There are precious few at ease
with moral ambiguities
So we act as if they don't exist"
- from Wonderful - in Wicked the Musical
Neither Science nor Law are equipped to handle the question of abortion. Science cannot prove, while Law is too blunt an instrument. Only she is in the correct position to make this decision.
16
There are several lessons here that Ms. Greenhouse ignores. The first is that Ireland legalized abortion and same sex marriage by a popular vote, not by judicial fiat. Perhaps we should try the same thing here in the US.
The second is that opposition to abortion doesn't have to be religiously based, unless we equate morality with religion. Just because the Ten Commandments say "Thou shalt not kill" that does not mean that opposition to murder is automatically religiously based. Nor does the Catholic Church's opposition to the death penalty discredit death penalty opponents.
Is the belief that life begins at birth or at viability any more or less religiously based than the belief that life begins at conception?
3
@J. Waddell You make a good point in the abstract. Prof. Greenhouse, however, showed us that the authors of the anti-abortion statutes expressly tell us that the measures are motivated by religion. The language that undergirds and surrounds the measures are not only religious in general but sectarian. That raises the question of how such measures can be accommodated by a religiously pluralistic society with a secular aim.
11
@J. Waddell
In the US. civil rights are not subject to the vagaries of the popular will.
That's why the Constitution has a Bill of Rights.
We who are pro-choice make no claim about when life begins. Life is a continuum.
What we say is that a fetus is not viable before 24 weeks, and up until then it has no rights over the woman carrying it.
10
@J. Waddell The question is not "when does life begin," it is "when does life received the protection of the state." In capital punishment, the state withdraws its protection of life. In recent times, the state has extended it's protection to life forms previously considered disposable: unwanted puppies and kittens, for example. In the case of the unborn the Constitutional right to privacy extends from choice of birth control method to fetal viability; although that may get pushed back some, it's not going away.
1
All patriots must embrace the separation of Church & State as key to American democracy. The definition of a human life can be argued through religious perspectives, but cannot become civil law.
Throw out Privacy and hold firm.
11
@Sara Sepation of church and state appears nowhere in the constitution, rather appearing in a private letter Thomas Jefferson wrote to the Danbury, CT Baptist community, assuring them the state wouldn't interfere in their religious practices.
I've often seen arguments about the Establishment Clause used in debates between the religious as a whole and the irreligious as a whole. But in this case I think the Establishment Clause (as LG alludes) applies >between< religions. E.g., Genesis 2:7 says life begins with the first breath ("breathed into his nostrils the breath of life, and the man became a living being.") So there's a real theological debate here >between< religious interpretations, not just between the religious and the irreligious. And promulgating one theological interpretation over others violates the Establishment Clause—and arguably also violates the Free Exercise clause, as well. And if the government can do that with >this< issue, what stops it from doing it with >other< theological issues...?
8
@sjepstein
We only use the theological argument to call out religious fundamentalists on their hypocrisy, since they are basing their claim of "life begins at conception" on control of women, not on the Bible that they profess to believe in.
“To the bill’s many supporters, this legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.”
If this is true, then every single person who claims to hold this belief should never serve in the military, nor take up arms against anyone else, even in self defense.
But of course it isn't true. It's sanctimonious hypocrisy, and empty rhetoric, used in an attempt to force everyone else to follow a religious belief. Now that these hypocrites have a majority on the SCOTUS, they can see victory in sight, and their joy blinds them to the reality that if they "win" the right to limit other's freedom, they've also limited their own, and one day it might be turned back on them. Since they claim to be Christians they won't accept it, but karma doesn't require belief in it to do its work.
As a test of their hypocrisy, I would challenge them to answer this: If it's okay to limit the Constitutional rights of women who seek the freedom to choose abortion, is it okay then to limit the rights of those who wish to keep and bear arms? I'm guessing for the anti-abortionists, the answer is "No". Hypocrites.
21
Linda Greenhouse throws out a literally parenthetical comment that abortion was legal at the time of the nation's founding, and for most of the next century. I'd like to hear a lot more about that.
2
@Ecce Homo Read Section V of Roe v. Wade. Justice Blackmun included a comprehensive legal and medical history of abortion dating back to Hippocrates. He also describes how abortion was fairly unrestricted until the mid to late 19th century, with laws getting increasingly more restrictive through the mid 20th century. He also pointed out that many (certainly not all) anti-abortion laws were driven by a concern for the life of the mother. Until the development of antiseptics, abortion resulted in a high mortality rate for the mother. It was at least partially on that basis - that abortions were considerably less risky for the mother - that Roe was decided. In other words, while it was dangerous for the mother, the state may have had a legitimate interest in restricting abortion. That interest diminished as the process became safer.
The argument about abortion is very much a matter of balancing rights: When does the state's interest in protecting the life of the unborn outweigh the state's interest in protecting the right of privacy and autonomy of the woman? Roe found that the state had no interest until the fetus could survive on its own outside the womb. Thus, the trimester rule articulated in Roe.
Some think Roe overreached, including (surprisingly) Justice Ginsberg. Maybe, but Blackmun's reasoning and legal research was impeccable and kind of elegant. I highly recommend you read it.
9
@Byron It is really not trimester anymore, but viability. And it is acknowledged that viability include artificial means and can change as technology advances. There are a lot of 20-week laws on the books with most folks saying 22ish is viability.
A good column; I’d add, as a supplement, that every “pro-lifer,” I’ve ever heard lately avoids invoking their religious beliefs, and instead tries to tuck them neatly into a bunch of pseudo-scientific claptrap about what science has “proven.”
In other words, they seem to have been taught to disguise religion as science.
15
Well, look at what they’ve done with evolution and climate change.
3
When I learned yesterday that state lawmakers in Texas are considering a proposal that would make a woman who has an abortion subject to conviction of homicide -- punishable by the death penalty there -- I knew that Shariah law (sans Islam) had truly come to the United States.
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@mtruitt
Is anybody surprised at this? Doesn’t a woman share the same responsibility for an abortion as the provider? Why would rape, incest or for that matter even the health of the mother, short of death perhaps, justify the taking of an innocent human life? And what about those who seek an abortion in another state where it’s legal? Why wouldn’t anybody who provided any assistance or aid that led to an abortion be guilty as an accessory?
Do you really believe that this couldn’t happen?
5
@mtruitt Some extremists on proposals that did not even come close to making it out of committees.
@Michael
You are quite right. Abortion should be legal under all circumstances because a zygote, embryo, or fetus is not a person, except in your religion, which you are not permitted to force upon me.
15
From schoolyard bullying to the demagoguery so evident in much of U.S law and politics, the roots and fruits of oppression in all its forms are revealed as a pathological depravity that craves and revels in the power to command cruelty... regardless of how it may be disguised or applied.
If the oppressive force attracts a sufficient following to overcome the natural resistance of healthy elements within a culture, it may grow like a deadly epidemic until it expires with the culture it destroys.
7
@Kirk Bready
Man you said a mouth-full there.... The lust for power runs deep and some choose not to resist its call but instead revel in and celebrate it. They love the feel of the words "Thou Shalt" in their mouth.
It is said that Satan comes in the shape of a demagog who lures the people to him by calling them to hatred and oppression of others in the guise of inflating their egos and provoking envy and mistrust.
Jesus warned his followers against this but they do not heed his teachings.
4
Ms. Greenhouse makes this statement, "You don’t like the public display of sectarian symbols? No problem — no one’s making you look at them." The same could be said about Hobby Lobby. if you want your employer to pay for birth control, don't work for them. What happens in a hospital that does have abortions? Should a nurse, physician’s assistant, or all the hospital paid doctors be forced to take part in the procedure if it is against their faith. I don't think so and I don't know of any hospital that requires that. The establishment clause argument is an academic debate. The right to privacy is something we all or at least a lot of us feel deep inside our lives. It isn't in the constitution. But it is supported by the first, third, firth, and fourteenth amendments. But the one that seems to hit at the core is the ninth declaring, stating that the, "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people." Right to privacy is a right specified or not specified. We don't 't need to lose the right to breath, love, care for or share. They are all part of our rights not specified, and they and the right to privacy should not be torn from us because they are not specifically mentioned.
5
@Ron
Greenhouse stated that quote against those who would use it.
3
@Ron I hope you never get sick from something the Church deems your fault. Millions did of AIDS because the religious community ( evangelicals) in particular would not offer care. Millions more become infected because of their ridiculous stance on birth control as well.
Religion is bring back the Dark Ages to the world
3
@M Vitelli I'm not sure where you are going with this. Not looking when you pass a place with a cross doesn't make you a second class citizen any more than choosing to not work at Hobby Lobby does. People don't get Aids because they don't take BC pills. In any case, Roe vs Wade was based on the right to privacy. Bork was kept off the Supreme Court because he said right to privacy was an invalid reason to determine Roe vs Wade and was unconstitutional. For me, the right to primacy should never be dismissed because it isn't mention. Certainly Abortion decisions, yes or no, is a very private matter and part of those rights mentioned in the ninth.
There is one aspect of this question which has always rankled me. "Deeply held beliefs"--with it's implication that if you've got them, than allowance must be made. OK, so far, maybe not so bad. The problem is that deeply held beliefs exist, and are respected ONLY if tied to a particular religion.
I discovered this when I was invited to visit Fort Hamilton. I learned that my deeply held belief (still intact after 50 years), that war is wrong, and killing is wrong, didn't qualify as a conscientious objection. Although my conviction was/is as deeply held as any forced birther, it could have no validity, lacking the imprimatur of some established religion, preferably Quakerism.
In other words, conscience exists only within the bounds of organized religion. Isn't it ironic that so much good is generated outside the confines of religion, while religion is responsible for so much conflict?
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@bobg
I had the same experience at Fort Hamilton, when my CO status was denied because I was not a member of an organized religion.
Belief in an autocratic imaginary being that dictates one's life is apparently more important to the government than one's sincere, freely arrived at moral convictions.
Theocracy has always had a foothold in the US government.
8
It seems to me that no one has the freedom to practice a religion until all of us enjoy freedom from one another's religions. Therefore I would prefer that all policy decisions about health care, including private-employer-sponsored health insurance, licensing of pharmacies, etc., should be made only in accordance with what peer-reviewed medical science deems to be best practice, in a peer-review that would pass muster with professional experts of all religions and none.
Tragically, there are spontaneous deliveries of fetuses that are too young to be saved in NICUs. This provides a scientific definition of when a pre-term embryo or fetus is potentially viable. By using this definition, law could be crafted to seek a balance of rights between gestational mothers and potentially viable children. The age of viability might change as science advances. But any law that would protect the unviable would be an establishment of religion, having no scientific basis.
Anyone who has had a child realizes that, no matter how much medical technology may have helped bring that child into the world, one may have the feeling that children come from some magical place of wonder and mystery and awe. I empathize with those who feel that procreation is in some sacred realm that should be beyond human interference. But I also want to live in a world where women have autonomy equal to men, and where no one is forced into a health care outcome on the basis of someone else's religion.
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@Walter Smith
I think all government decisions be only be made by people who agree with me and if that’s not possible, then by me alone. That’s the only way for my voice to count.
4
@Walter Smith "This provides a scientific definition of when a pre-term embryo or fetus is potentially viable." etc.
Potential viability is STILL invading a woman's rights when a fetus is in the womb. The better way is to keep the government out of a woman's body altogether. Citizenship is granted to the child when born, no matter how premature.
5
@Shamrock
If you believe strongly in something, of course you want that view to prevail.
People with neither convictions nor imagination accomplish very little.
Another great piece from LG. I find it amazing, and even more troubling, that in these trying times, with our country and a world faced with very real and serious problems — climate change, lack of affordable healthcare and those social determinants that impact population health, immigration and population pressures that impact opportunities for many resulting in widening inequality — that a vocal minority increasingly turns to religion for a solution. What's even more outrageous is that this minority is dictating national policy for the majority of us.
22
@Daniel N Ovadia, MD, MPH
Was gay marriage decided by the majority? Obama was against it while President. His supporters say he had no choice because it was so unpopular.
2
@Shamrock
That's an irrelevant deflection to Obama and a deliberate misinterpretation of the O. P.'s message.
He clearly said that it was outrageous when a RELIGIOUS minority dictates national policy.
3
The efforts of a minority of our population to force the rest to abide by their religious beliefs enacted into law is grotesque. It is also folly given that the planet Earth is reaching the point at which human life may not sustainable because of huge increases in population and the devastation of the environment to feed it. Instead of addressing this real moral dilemma, we are being forced to debate how many angels can dance on the head of a pin.
16
The so-called “Religious Exemption” and “Expanded Conscience” rules are typical of pernicious accommodations made in the name of Freedom of Religion. That Orwellian term, as practiced by religious conservatives, really amounts to the opposite of what it purports to mean. Rather than protecting freedom, it allows zealots to have their particular view of reality receive special treatment and to have their beliefs negatively, destructively enacted on others who do not share them - depriving women of healthcare, couples from receiving marriage licenses and perpetrating other denials of service to good citizens. These are the kinds of misguided behavior that the Founders sought to quell when they created the Establishment clause...and it is these types of behavior that highlight the need for Freedom From Religion.
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Time for a new amendment to the constitution. {Neither Federal nor State Legislatures should make laws concerning a person's right to control what happens to his or her own body, except to reinforce and uphold that right.}
5
@RLW Thereby making all drugs legal (which is okay with me) and making assisted suicide legal for any, or no, reason (which is okay with me). And, of course, prostitution would be completely legal (again, which is okay with me).
I'm okay with all of these things as long as the government (i.e., me as a taxpayer) isn't expected to pay for drug rehab or medical conditions caused by use of currently illegal drugs or, even, to stock police cars and paramedics with Naloxone or for treating STDs related to prostitution.
And, no private party (or business) should be required to aid in any of these activities in any way (such as through health insurance requirements).
1
It ticks me off to no end that
- in the United Stated and other backwards countries- a person’s ‘firmly held beliefs’ are only taken seriously when one claims that they were dictated by a magic sky daddy.
26
Addendum for "in god we trust": "because we have neither the honesty nor the competence to tell fact from fiction.
4
it's a good day when linda greenhouse's columns are in the nyt.
18
Would you have said the same about the Reverend Martin Luther King, Jr.?
King wasn’t a legislator or judge, and wasn’t trying to regulate reproduction. He also said that what he did came out of his faith, rather than lying about it.
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@Susan Citizen
King fought for civil rights, not against them.
He did not attempt to impose his religion on anybody.
2
This is a ridiculous argument.
5
In the past French acquaintances often expressed amazement that the U.S. president was sworn in on the Bible, usually finished television announcements with “God Bless America,” was frequently shown attending church services with his family, and that our legislators also seemed to often reference the Bible - things that would be completely unacceptable here, where secularism is practically a battlecry. I always told them to relax, that these were just customs with no real religious significance and that we had very clear Separation of Church and State. Now however, with the rise of the “religious right” who seek to insert their religious beliefs into our schools, our hospitals, our places or work, our courts and our bedrooms, I am no longer relaxed but outraged.
35
Another excellent column. Perhaps a few years from now we will have a court that will put religion in its proper place.
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@libdemtex
"a few years"? We're already looking at decades. Another Supreme Court justice or two, and few of us will live to see the end of this...
6
Ms. Greenhouse:
The Establishment Clause only prohibits the Congress from the establishment of national religion by Congress. It doesn't prohibit the elected members from endorsing religious principles via legislation. Would you object if your state's legislature replied laws against murder b/c religion objects to killing others?
3
Yeah, it actually does. And yeah, I might very well object to that.
7
@James
I don't care where legislators get their morality from, so long as religion is not written into a law as its justification.
3
@Robert
All of you experts on the constitution really should go to law school.
"(Abortion, by the way, was legal at the nation’s founding, and for much of a century afterward.)"
I would call this an extremely misleading sentence. I suspect what it actually means is that the law was silent on the matter. Safe and reliable ways to induce abortion were not really available.
Some midwives, physicians, apothecaries and laywomen doubtless had knowledge of herbs with the potential power to end a pregnancy, and would have been sought after for the purpose, which, for obvious social reasons (the point being to end a pregnancy that occurred out of wedlock) would have been kept quiet. Surgical abortion would have been at least as unsafe and traumatic as a modern "back-alley abortion" -- since there was little to no understanding of the dangers of infection, and anesthesia was also unknown. Only a quack, or a desperate woman, would attempt it.
Laurel Thatcher Ulrich's book, "A Midwife's Tale: The Life of Martha Ballard, Based on Her Diary, 1785-1812" documents this fascinating woman's own records of her decades of practice in rural Maine. Among the hundreds of calls that she logged in her diary, there do not appear to be any in which she was asked to induce an abortion. Perhaps she had a euphemism for it that she used in her diary.
In any case, Linda Greenhouse should not be giving the impression that safe and reliable abortion was available, acceptable, or recognized in law at the founding of the US.
2
@herzliebster
'Everything which is not forbidden is allowed" is a constitutional principle of English law—an essential freedom of the ordinary citizen or subject.'
https://en.wikipedia.org/wiki/Everything_which_is_not_forbidden_is_allowed
Rights do not have to be recognized by law. Law defines what is forbidden.
1
@herzliebster Back in the time you talk about, women had NO OPTION or Rights. Their role was to be a wife owned by her husband to cook clean and give birth. So of course no one asked for an abortion! The only thing that gave them value was their ability to pop out babies. See Henry the Eight for proof
@herzliebster Prof. Greenhouse's statement is not "extremely misleading." It is substantially accurate. First, to say that an action was "legal" or "lawful" always means that there is no law against it. To say that law is "silent" on a matter is not a neutral statement. Since our criminal law is codified, what the law is "silent" about is lawful.
Second, it isn't persuasive to generalize "the law" from your "suspicion" based on a single text of a midwife practicing in rural Maine in the latter years of the eighteenth and beginning of the nineteenth
centuries.
Third, at least read the majority opinion -- a 7-2 decision -- in Roe v. Wade, section VI, which discusses the history of abortion practices from antiquity to 1970. The text of the decision is easily obtained on line. If we credit the majority with stating the history reasonably correctly, Prof. Greenhouse's parenthetical comment is substantially accurate.
Since these matters have, unfortunately, become politicized, the seven justice majority in Roe consisted of five justices appointed by Republican presidents and two by Democrats. The two dissenting justices included one appointed by a Republican and one by a Democrat.
1
The same religious arguments obstruct the Equality Act. The political theory of making the greatest show of religious devotion -- even expressed however uncharacteristically by Donald Trump -- is a fundament of our hypocritical electoral playbook.
Let's hope for the best, even as we plan for a workaround in the states.
5
Which is why pro-birth control, pro-abortion, pro-reproductive freedom people must address the religious aspects of their support. Why do so many Americans support abortion? They aren't all secular humanists or atheists. They simply do not believe the soul begins at conception.
Evangelicals argue that just as people back in slavery days could not see black people as human, so people today cannot see the embryo or fetus as human. They argue that DNA proves the embryo is human, therefore one day everyone will see embryos as babies just as (most) people today see black people as human.
But this is not true. Pro-abortion people will never see embryos as the same a born, human babies. Why not? Because until very late in the gestation process, the only soul present is the woman's soul. There isn't a second soul there, no second "person," not yet.
This is why many women who would never harm a baby will have an abortion. This is why there is almost universal agreement that infanticide is wrong, but there will never be universal agreement that abortion is wrong.
Evangelicals have it backwards. People today see black people as fully human because they were fully human all along. It was already there to be seen. Embryos are not fully human. Fetuses are not fully human. There will never be a great awakening of Americans who suddenly see the embryo or fetus as fully human because it isn't there to be seen.
10
@DB fetuses are fully human. Embryos are fully human. Those who believe otherwise are rationalizing because they don't want to acknowledge God because they don't want to take responsibility for their actions.
It is well-known fact that sex may result in pregnancy and a child. Those who pretend that babies aren't human until birth are practicing wishful thinking
My family emigrated to US in the 70s, and I learned about the separation of church and state in high school in a college town in Missouri. Ever since then though, I’ve been so confused about this separation, because I don’t see it. Why do you put your hand on the Bible and say “help me god” in court? Why does the president have to put his hand on the Bible for the oath of office? “God” is mentioned everywhere in government. Have we had any presidents that don’t go to church? Why is Christmas a holiday, but not Hanukkah or Ramadan? As a non-Christian these facts make me very confused and uneasy.
15
@Momo Separation of church and state doesn't mean that people in government can't exercise religion in public.
The nation was founded by Christians, who named the days of Christ's birth and death as holidays. Minority populations holidays aren't generally on a country's calendar.
My experience is that people are able to take vacation days from work at their choice to celebrate their holidays.
There's no reason to be confused or uneasy.
“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.”
I’m horrified watching people use their religious beliefs, which I would hope help make them better people, but don’t, restrict the rights of women and LGBTI people. I’m bisexual and nonbinary, assigned female at birth, and my wife is a transgender woman. We are being harmed by the misogynistic, homophobic and transphobic laws and policies promulgated by so-called religious people. We have been discriminated against in healthcare, for example. We are good people. We will not go back into the closet. We will not serve our oppressors. Why don’t some religious people follow the golden rule? They don’t want people to respect their humanity and their civil rights?
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@Lisa
All they really need to do is follow Jesus's example of being all inclusive, loving the least of us is loving him. I am not a Christian, but from my perspective, a lot of self-proclaimed Christians are not followers of Jesus's philosophy.
17
Nowhere in the U.S. Constitution are the words "under God" written. It is an entirely secular document, the principal part being a job description for the three branches of government. The secondary part, the amendments, addresses people's rights.
Thomas Jefferson, in an 1802 letter to the Danbury Baptist Association, which wrote to him for clarification on the separation of Church and State, said:
"Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions,
"I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State.""
He references the establishment clause, states that religious belief is an "opinion" which government cannot base its actions on, and clearly reiterates the separation of Church and State.
Religion as a legal basis for any decision has no standing, given that it is a mere opinion. The Republicans, not exactly Christian, but certainly loving their stranglehold on power, are using Evangelicals keep that power.
Those who use religion as a reason for denying Constitutional rights are motivated by a desire to control and to save money, not any sort of Christian benevolence.
14
When, according to atheists and/or strict adherents to the Establishment Clause, does "life begin"? If their views, as opposed to those of adherents to a religion, are the only safe guides to a neutral interpretation of the Constitution's meaning in regard to abortion, shall we ask only atheists and Establishment Clause-wallahs for their defining views? And should we do so also regarding any other question on which American notions of morality and law seem to derive from a religious tradition?
@Martin Daly
We do not claim that there is a moment when "life begins." Life is a continuum. We only say that before a fetus is viable it is definably a part of the woman.
And even after that, we say that a woman still has the right to control what happens to her own body.
No morality or law derives from "religious tradition." Any person who requires a dictate from an imaginary sky god to determine what is right and just has no claim to personal morality.
4
@Martin Daly How about using science based on fact grounded in reality?
2
@Martin Daly No laws should be passed due to the views of anyones belief or non belief. Law/government should remain neutral and only be implemented with facts that can be proven. The disconnect between the religious and secular is partly caused by the rejection of science by religious fundamentalists. Religion is not equal to science due to the ability to prove scientific data consistently. Religion is based in faith and emotion which is fine for an individual to base their existence on but, it has no place in any discussions on public policy. If you dont agree with abortion then don't have one or perform one. The very presumption that your supposedly omnipotent diety requires your assistance in implementing your interpretation of his rules is a bunch of sanctmonius narsisisim present in these so called believers. Next time your at work go around to your co-workers and tell them they have to due things according to what your interpretation of what you believe company policy is. They can read the policies in the handbook but they must only follow them by the way you believe they should. Now think about the reaction your boss would have to this.
In the end though we dont know if god is real or not which is why our government was envisioned as a secular one free from religion so that everyone would be able to practice their faith however they chose to privately with others that believe the same as they do while respecting the rights of others to do the same.
1
Other than to ensure the freedom of religion regardless of its beliefs laws should not be based on any one group's religious beliefs. Otherwise there should be no activities on Friday, Saturday, or Sunday and any other day espoused by a religion as being a sacred day. I believe that ancient Rome had over 180 sacred days per year but they seem to have made the best of the remaining days of the year.
3
The claim in the Missouri law that "life begins at conception" was settled in the 19th Century by Louis Pasteur, and his work has been re-affirmed by the works of hundreds of scientists since. Life does not begin at conception. Both the sperm and the egg were already alive. If that was not the case, you would not get a zygote.
As to whether the fetus has a soul, that's a religious question. For
Catholics, the issue was definitively addressed in the 13th Century by Thomas Aquinas in his Summa Theologica. The fetus does not have a soul until 40 days after conception. What makes this more than just the reasoning of a great Theologian is that two Popes have ex Cathedra pronounced it true and eternal dogma of the Church. Note that when Paul VI opposed contraception, he did not contend against this dogma, but claimed contraception was wrong because it was unnatural.
I do not know what all religions believe on this question. But a simple adding up of numbers shows that most people in the USA, like most people in the world, do NOT belong to a religion that believes the fetus has a soul from conception.
If you are so opposed to abortion, do not have one. If you are a man, do not make a woman feel she needs one. You can try to convince others, especially those in your family and your church. But using the government to force others to conform to your religion? Not constitutional. Not nice.
38
I suspect that the courts' and the public's inability to detect the influence of Catholic dogma regarding the status of the unborn fetus is due in part to decades of erosion of the Establishment Clause in the field of education. In many states biology textbooks now blandly repeat the assertion that "life begins at conception", which surrounds it with a spurious aura of scientific consensus, and this is a direct consequence of the influence of the anti-abortion movement on curriculum design.
Preventing this kind of promulgation of religious doctrine is precisely what the Establishment Clause was supposed to prevent. Not the least of the resulting problems is that this part of the First Amendment is increasingly hard for people to understand.
13
What part of when life begins is religious? Is a humanist or an atheist unable to conclude that life begins at conception? The law today is the most bizarre conclusion possible - we must protect life once medical science is able to keep a baby alive without the mother. What happens once medicine comes up with an artificial womb? Does this make abortion illegal?
4
@Stefan
The idea that life begins at conception is a religious one, having no scientific basis.
That fact that some people believe it, regardless of their politics, does not make it true.
When medical science comes up with an artificial womb we can have another debate.
Right now the only womb is the woman's, and it belongs to her, not to the state.
13
@Stefan If you only support for the proposition is your belief, then it's a religious or philosophical belief, but not a fact. If a fetus cannot survive outside the womb, it doesn't serve the rights of a person, because it's not a person yet. Your position is not that a fetus has the same rights as the mother. Your position is that a fetus has rights that trump and cancel the mother's rights. Believe that if you want, but don't tell me I have to.
6
Right on!
The people who use the terms “pro-life” and “anti-abortion” for themselves should rightly be referred to as “pro-fetal rights”, which I do not think is inaccurate or disrespectful, as they are championing the inalienable and unquestionable primacy of embryos over the rights of childbearing female persons- witness the ‘personhood’ movement. They hold the belief that a fertilized egg is sacred, as well as endowed with the same rights as a living being already born, and are now enacting laws that ensure that that belief cannot be opposed. These laws deny the right of individuals to hold a different view of the fertilized egg, to hold any other belief in regards to the rights of the fetus. I see this as encroaching on my rights, and the rights of many other citizens, to hold a different view. Which is exactly the point of the Establishment Clause. Thank you!
21
@Kep Yes, the pro choice movement really dropped the ball in the battle over rhetoric. A fetus is not an unborn child. It is not any kind of child at all. Neither is a zygote.
9
@James Smith
Which is why we have scientific terms such as zygote, blastocoel, embryo and fetus to denote the developmental sequence that ends with the birth of an infant. But may not be completed for a number of reasons, including spontaneous abortion (miscarriage).
1
Not all religious denominations oppose choice on abortion (for instance, the Episcopal Church doesn't) and not all religiously non-affiliated favour it (some googling comes up with a statistic of 25% religiously affiliated that aren't pro-choice, and there are secular pro-choice advocacy groups). So the connection between religious identity and views on abortion just isn't as definitive as Linda suggests. Also, the Roman Catholic Church takes a progressive view on, say, capital punishment (it opposes it) and the admission of refugees (it favours liberalization). But I doubt anyone would think that abolishing capital punishment and liberalizing the U.S. policy on refugee claimants would involve an establishment of religion. It feels as if Linda is linking her hostility to the Roman Catholic Church (and its "shackles") and her pro-choice position and coming up with — snake eyes.
2
@A Hayes This is a good point. But keep in mind that just because all churches are not anti-abortion, does not mean that the anti-abortion movement is not a religious one that comes right out of the church (OK, out of certain churches, maybe not yours, but that does not change the fact of what it is.)
7
@A Hayes (meant, 25% of religiously NON-affiliated in the above)
1
@A Hayes
Not all religion is anti-abortion, but the primary forces that are anti-abortion are religious.
The Roman Catholic Church is unequivocally anti-abortion, and deserves all the blame it gets.
3
Murder and robbery are also prohibited by religion. Does that mean laws prohibiting murder and robbery violate the Establishment Clause? We should be wary of invalidating laws that don’t clearly regulate religion solely because some people’s views on them are informed by their religious beliefs.
4
@Devil’s Advocate
don't waste your money on law school. just sayin....
7
Bad analogy. You would be hard put to find *anybody*- atheist or religious- who does not think murder and theft should be illegal.
13
@Devil’s Advocate Do state and US laws on murder and robbery invoke God and Bible stories as justification?
15
"Abortion, by the way, was legal at the nation’s founding, and for much of a century afterward."
It was always shocking to me that so-called "original intent" Supreme Court justices ignored this fact. If they want everything to be the way it was on Day One, this should have been the start and end of the inquiry. Just further exposes the political motivations of the Supreme Court.
20
This column perpetuates an on-going liberal mis-reading of the Establishment Clause. Prior to the Revolutionary War, there were officially established, government-supported denominations in many of the colonies. These government supported denominations received financial and political support to the detriment of other denominations.
The purpose of the Establishment Clause was to fix this problem by preventing the government from financially and politically supporting one denomination over another. It is as simple as that.
The purpose of the Establishment Clause was not to take religion out of the public square, not to take political rights away from practicing Christians, Jews, or Muslims, and not to prevent Christians, Jews, or Muslims from living out their beliefs in their day-to-day lives, or in their interactions with non-religious people.
This is the reason the Supreme Court has never brought the Establishment Clause into the abortion debate. The clause is about the equal government treatment of all denominations, not about preventing the religious beliefs of individual citizens from influencing the political process.
4
@MarkN I agree with you about how bloated the liberal reading of the Establishment Clause is.
The Establishment Clause says that the US cannot have an Established Church, like the Church of England.
It doesn't say that it is unconstitutional for elected officials to consider ethics that might be inspired by faith, nor require that the state be religion's adversary, nor prohibit the state from giving any money to a religious agency that is acting in a secular purpose.
@MarkN
A passel of the original founders have written about this, and concluded that the Establishment Clause meant separation of church and state.
At any rate, writing religious justifications into a law clearly intends that government favor a religion, in direct violation of even your definition of the clause.
7
Current legislation regarding providing financial assistance to the poor became law because of arguments based on religion. Specifically, Christianity’s many statements that god imposes a responsibility on us to take care of the poor. Some laws even make direct and indirect biblical references their text. Are these laws unconstitutional because of the establishment clause?
My favorite violation of the establishment clause is that courts are closed on Christmas and on Good Friday, and government employees who work those days get paid at the higher working holiday rate — both days are uniquely Christian holidays.
2
@Richard P M
You are correct. Such laws are a violation. So is "In God We Trust" on coins and in public courtrooms.
However, as they do minimal harm, they have not aroused the need to be widely and strongly addressed.
Hobby Lobby, the Jack Phillips bakery case, and the current anti-abortion laws in Alabama and Georgia do great harm.
Therefore, enforcement of the Establishment Clause is an urgent and necessary action to protect the freedom and lives of women.
4
@Jerry Engelbach You raise the measurement standard of harm, but whether or not harm is being caused is subjective. Tens of millions of people believe abortion causes harm. Tens of millions of people believe that preventing abortion causes harm. Should a view of what is harmful which is influenced by religious beliefs have less standing in the public square than a view of what is harmful which is not influenced by religious beliefs?
Our form of government means the standard of what is harmful ultimately gets decided through the ballot box and the resulting legislative decisions and selection of judges. The abortion decisions in Georgia and Alabama, Hobby Lobby, and Jack Phillips reflect the beliefs of religious voters. If the non-religious in this country do not like these outcomes, then I guess the only decision would be to disenfranchise voters whose votes are influenced by their religious beliefs.
@MarkN
I'm simply explaining why the anti-choice movement has generated widespread opposition whereas the invoking of religion by government in other areas has generated relatively less.
I certainly would like to disenfranchise voters whose decisions are motivated by their religious beliefs. The Constitution established a secular state, and laws that violate that principle should never reach the ballot box.
1
But then there is the question of whether abortion is a right protected by the Constitution. By any reasonable measure, Roe was, legally, an awful decision. It was not based in the Constitution at all. The justices wanted to make abortion a fundamental right and twisted the words of the Constitution accordingly. Once we accept that, based on our Constitution, abortion is not a fundamental right, any justification can be used to ban it. Not that I am saying that I am personally against abortion--as a matter of law, states, under a proper reading of the Constitution, should be able to regulate it in any manner they chose
2
@Tom
Privacy was established as a constitutional right in Griswold.
Roe expanded that right.
If the Constitution is supposed to be a straitjacket based on mores that are two-and-a-half centuries old you would be correct.
But that conclusion would be as absurd as people basing their lives on a book written thousands of years ago by biased scribes with little or no knowledge about the natural forces in the physical universe.
3
Thou shall not steal is one of the 10 commandments. Using the logic in this piece laws against theft are unconstitutional.
2
@Lane That's backward. The article doesn't say that laws that coincide with religious beliefs are unconstitutional, it says that making laws to mirror specific religious beliefs that others don't hold can be unconstitutional.
Think about correlation and causation. Greenhouse says that religion is the cause of abortion laws and that's why we should be concerned.
7
Nope.
Everybody- religious or not- thinks theft should be illegal.
Christians didn’t invent that one.
4
@Lane
You're implying that if it weren't one of the Ten Commandments everyone would steal.
I doubt that you believe that.
And, in fact, I doubt that even before the Ten Commandments were written that the Children of Israel believed it either.
1
I have personal reasons to be against abortions after the 1st trimester, and none involve religion. Advances in science since 1973 have given reason to re-consider much of what Blackburn wrote in his decision. The question that must be answered is not whether abortion should be legal, it should. The question is when an unborn becomes protected by the constitution. The extreme of aborting before the baby is completely out of the womb/partial birth has few supporters. Healthy and eight months developed, few again. Physical health of mother and unborn child as well as rape and incest are all factors. Privacy and undue burden are not reasons to take a life. When a baby is considered a life, protected by the constitution is the first. Abortions after that point will be the next test for the Courts.
2
@Jay What is "aborting before the baby is completely out of the womb"? I don't recognize what procedure you're referring to.
Fetuses can't survive out of the womb before 24 weeks (for 22-24 week olds chances are 0-10%). Abortion isn't legal after 20 weeks most places in the US anyway. No one can get an abortion at eight months and healthy -- *no one*.
3
@Jay Only 1% of abortions occur after 21 weeks gestation, usually because of medical reasons for mother or fetus. 90% occur by 13 weeks. Newborns under 22 weeks gestation do not survive, and most under 24 weeks don't either, even with modern medical intervention.
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@Toaster
Only one-third of the states, not most, have banned abortion before 24 weeks.
Ms Greenhouse apparently doesn’t know the difference between government funding of a religion and voters and legislators making moral choices based upon their own religious views. I find that highly dangerous and disturbingly naive. Most people would vote against slavery as a moral choice based upon their religious views. But of course that would have nothing to do with the government funding of a religious group. Her argument is silly. She just doesn’t like or respect other people’s view of the morality of abortion. The US is as far from a theocracy as could be possible. No one is advocating government funding of pastors, seminarys, church construction, etc.
2
Slavery is a violation of a fundamental human right- autonomy over one’s body.
Forcing women to gestate and give birth is a Also a violation of a fundamental human right- autonomy over one’s body.
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@Shamrock
A "moral choice" that involves depriving another person of their civil and constitutional rights is not my idea of morality.
Regardless of how a legislator arrives at their choices, they have no right to embody religion in a law.
3
@Shamrock There'd be a lot fewer church construction projects and paid pastors were in not for tax policies and taxpayer support that in effect pay for them. Tax laws can be changed by Congress, and if a certain religious sect and their judges start forcing their beliefs on everyone, those tax laws are likely to ultimately change.
2
Why do all progressive causes always involve a repudiation of Christianity? Is religious bias built into progressive ideology? What of their own zealotry?
2
@AACNY
First of all, repudiation of Christianity only happens when Christian fundamentalism influences the law in a way that is detrimental to others.
Second, "bias" against religion is based on attacks by religion of the secular government established in the Constitution.
Finally, you are deliberately confusing zeal with zealotry. Zeal is the avid pursuit of one's goal. In our case, it's to erase the corruption of religion on the free and open exercise of civil rights guaranteed in the Constitution.
1
@AACNY But it's liberals (progressives?) who actually advocate following the teachings of Jesus, not the teachings of extremist evangelical Republicans who use the cross as both weapon and shield.
1
@AACNY. NOT a repudiation of Christianity, a protection of the separation of Church and State.
That means: no one religion is to be favored over another by the State, as it says in our Constitution. If a Progressive viewpoint happens to coincide with a religious viewpoint, great.
1
One foresees amendment to Alabama’s state constitution, declaring Alabama citizens conscientious objectors to war, an official powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God. Whether Alabama exempts war-mongers, if any there be, is up to the Senate Select Committee on Conscientious Objection and Governor Ivey when they draft the deeply held amendment reflecting modern redemption since the Civil War, which acted out contrary deeply held beliefs, and redemption from other American national wars participated in by Alabama. An inclination by war-mongers, if any there be, not to hold breath may be contravened by the Governor’s personally favoring sacred gifts.
One might object that this routine is silly. Noted but not agreed. The theocracy of Alabama proclaims it not silly.
4
I appreciate this essay and strongly endorse it's suggestions. What is ironic is that this paper does not seem to take to heart the spirit of Ms Greenhouse's remarks. Of course the NY Times is a private organization that has the right to express whatever religious views it prefers. But it is also an enterprise that owes it's survival to it's subscribers. On the opinion page we never see an essay by a Rabbi, Reformed, COnservative or Orthodox. With all the importance of Islamic perspectives across the globe we never hear from an Imam who might explain the lively debate that goes on in that tradition over modernization. Never do we read words of any of the many forms of Buddhism even though it's practices and views spread their influance over American lives more each year. We do not even hear from a Protestant minister who might give us an understanding of Biblical interpretation and the notion of the individuals relation to God. Finally, never can we even hope to hear from the many atheistic voices who have developed many approaches to moral realism that do not depend on any supernatural belief systems. Instead we have seen literally scores of essays by Mr. Douthat which assume the accuracy of a singluar view of one Church. Mr. Douthat is no philosopher or theologian, he never gives an argument for his beliefs. Rather he seems to see his views as privilaged and entitled to be imposed on that vast majority of Americans that do not accept the infallibility of the RC Church.
6
Ironically the right and their current leader favor other means to kill the fetus: wars of choice, economic sanctions, rejection of universal health care, weakening the safety net ( not a complete list).
Of course if your faith sanctions, or is silent about, collateral damage, fetus protection is of less concern.
7
No matter how hard you try you can't have a Democratic Republic run as a Theocracy. It's one or the other. The Religious bemoans the secular intentions yet it is the secular intentions that make us FREE. Secular governments mostly elect elect their government, Relgious governments Kings are supposedly anointed yet a high percentage use war for each change of Head of State. I think if we want to be Free we need to be Free from Religion.
11
As it stands now, the Supreme Court is there to destroy the Establishment Clause. There was a reason to fear Roman Catholic influence (current justices seen a puppets here) back to the founding of this country given centuries of persecution of non Catholics, women, Jews, and intellectuals. I would rather see the country split than subscribe to the loss of Freedom of and from Religion with the part that upholds freedom claiming true adherence to the original Constitution. Living without the Establishment Clause is no way to live. It betrays the Enlightenment that birthed this country.
If the older generation thinks they are immune, consider end of life issues. Do you want to be denied the right to end your life if pain and certain death awaits while insurance eats up any money left?
10
@poslug Protestants also persecuted Cathoilics. Jews in Israel are showing the same love and respect for Palestinians that the white southerner did for Black Americans circa 1890, almost every country on the planet has suppressed or repressed women historically or currently, and plenty of dictatorships on the left or right have targeted intellectuals.
There is no reason to mutter about Roman Catholic influence on the Supreme Court unless you are also willing to give a pass to people like Pat Buchanan who are convinced there is too much Jewish influence on the Supreme Court. Bigotry is bigotry.
There are plenty of Roman Catholics who are opposed to the generally right-wing Roman Catholics currently serving on the court and even a few Jews who are opposed to the generally left of center SC Jewish judges.
1
I am pro choice and I believe a woman should should have agency over her own body. That being said, I have to disagree with the argument, using Alabama as an example, that being pro life violates the Establishment Clause in the Constitution. Your religious views may inform your opinion about when life begins, but there is absolutely a secular argument to making abortion illegal as well.
The constitution seems to be a horrible vehicle to determine at what point does the mother's right trump the fetus', and at what point does the fetus' right trump the mother's. In a perfect world, i.e. most of Western Europe, there would be a regulatory framework about getting an abortion.
GOP politicians decry having "abortion on demand" as if women treated it on the same level as going to the dentist. But in reality, that is where we've been historically since Roe, and society might be right to feel that before that fetus' life get's ended that there are certain conditions attached. In short, there's a lot of room to accommodate society's pro life impulses while protecting the mother's ultimate right to choose.
3
@Jonathan Sanders Anti-abortion people are not pro-life, By and large they are strong supporters of the death penalty and a large active, military. They Want the fetus to be born but they als refuse to provide help to the mother once that child is born.
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@Jonathan Sanders
Society doesn't have a "pro-life" impulse. There are anti-choice and pro-choice forces, and they are polar opposites.
The anti-choice forces demand that a women give up her civil rights. The pro-choice forces refuse to do so.
There is no room for compromise.
2
Boy...this is so smart! So simple! I wonder that no one has brought this up!
Thank you!
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@Sandra
Because it’s not a legal theory that any judge would give any weight. No state or federal judge will follow her argument. That’s why.
So, the “religious” justices will force all pregnant women to bear a child without the guarantee of health care or social policies supporting the child & mother. Certainly not an expression of love, so foundational to Jesus’ teaching. Of course, if we humans don’t soon do a lot more to protect the environment millions if not billions of these protected humans could all disappear as Mother Nature becomes uncontrollable and reacts in ways detrimental to human existence.
5
This unrelenting fight by men insisting on taking control women’s right to choose needs to stop and it needs to be stopped by women.
I suggest that any women who becomes pregnant through either rape or incest has a right to choose any male legislator who signed the new abortion law into effect, as the father on the birth certificate. In a sense, don’t these male lawmakers bear the same responsibility to the child as the actual rapist?
Just like the rapist, these male legislators are forcing their will on the women and just like the rapist, they are not taking any responsibility for their actions. If these legislators want to insinuate themselves into the life of the mother, they should be forced to bear equal responsibility for the child. Force them to pay child support.
Let these law makers go to court and argue that they never knew the woman and they should not be forced to do something they had no control over. Let them argue about their financial right to choice. Let them know the pain of having the trajectory of their lives altered forever.
Let’s put the impact of forced births on men too.
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@Leslie I could have sworn that these new laws were supported by millions of women and in some cases signed into law by women.
Abortion politics does not divide neatly among gender lines. The inability and unwillingness of left leaning white women to recognize this is a big part of the reason we have President Trump.
There is only one symbol required in public spaces in the United States and that is the flag. Religious symbols have no place and neither does public prayer and that includes the "under God" reference in the pledge of allegiance. Christ himself said to pray in private and called those who insist on praying in public hypocrites. Every Christian who would use public funds to erect a religious symbol, or who supports prayer at public events including in the Congress, or who uses public facilities for prayer groups, or who intones "under God" when he or she recites the pledge, is by the definition of the Christian faith, a hypocrite. And the deists who founded this Republic also made such acts unconstitutional. When god is brought into the public sphere, both belief and the public interest end up muddied, mugged, and molested by the experience.
10
I believe in helping the poor. My belief is entirely religiously based. I am a state legislator. Therefore a law psssed by me and my like minded colleagues is unconstitutional according to Ms. Greenhouse.
@Shamrock Not just Ms. Greenhouse but also most legal scholars, centuries of American jurisprudence, legal precedent and most of the founding fathers of this nation would all agree that if the law passed was based on religious beliefs to the detriment of other religious groups or the non religious then it violates the establishment clause. Your example is not analogous with abortion. Most people believe we should help the poor with or without religious belief. Religious affiliation is not a requirement for mortality. So even if you came up with a law to help the poor purely due to your religion it is a view held by most people and unless it somehow imposes religious tests or punishments it doesnt violate the establishment clause. But if say a rule that says in order to receive help the poor must attend church every sunday then that would violate the clause. The violation of the establishment clause with abortion occurs with the definition of life which most Christians claim is at conception a view not held by everyone causing a christian belief to forced upon non-christians.
Also just because you believe in a god doesn't mean you are a good person and everyone that doesnt believe is a bad person. If the only reason you do good moral things is because you fear retribution from a deity then your probably just a bad person. Most bad people throughout history were in some form religious.
@Shamrock. YOU may believe your tenet is entirely religion-based, but there are plenty of secular reasons that support helping the poor. Now if religion were the only reason that anyone would EVER help the poor, then you’d have a point.
The irony is that halfway through the American Republic’s third century of existence, it is evolving from a de facto Christian nation to a de jure Christian theocracy, propelled by the so-called “originalists” on the bench. The further irony is that as these Christian nationalist extremists seize power, the more out of touch they are with the cultural progress of mainstream America. Our increasingly de jure Christian nation is rapidly becoming a far less de facto Christian nation, and it is likely that without some change to our electoral system the world will come the regard American leaders as little different than Iran’s Ayatollahs.
10
More hypocrisy from the right. SCOTUS scurries behind the skirts of originalism when it's convenient but ignores it when it's counter to their whims. The old phrase, "There ought to be a law" is void when we have the laws that are observed only in the breach.
2
The irony here is that both the Old and New Testaments, to the extent they say anything about abortion, imply it's not a sin.
6
“To the bill’s many supporters, this legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.”
Alabama has the highest per capita death penalty rate in the country. In some years, its courts impose more death sentences than Texas, a state that has a population five times as large.
9
I have been saying America is dead for many years even if the election of Obama had me doubting my observation for a second or two.
In 1776 it was the vision of men like Thomas Paine who defined what America was all about.
In 1776 it was justice that wore a blindfold and carried a balance in 2019 it is men like Mike Pence who wear blindfolds and refuse to give up the car keys.
My father loved almost all religions but it was over 70 years ago he started teaching me, all the pious are thieves. Without some doubt faith is of little service. I am a non believer but I pray all the time and try very hard to do what's best for my universe.
4
I have a religion, which is practiced all around the globe. I don't need to circumnavigate an Establishment Clause; justice and political systems bow to my religion, since it comes naturally to most of us. Laws will not buffer it, and who sits on the Supreme Court is blithely irrelevant. It calls for the faithful to, over time, destroy the environment, scatter nuclear materials throughout the planet, fill the oceans with refuse of interminable lifetimes, hasten the demise of as many species of animal life as possible, enable the rich, destroy the poor, convert natural resources to useless junk, corrupt the atmosphere, and irreversably mangle the natural weather and ocean current systems. Resistance is futile.
3
I could not agree more with the author, but I think we need to point to "unintended consequences" BIG TIME! here.
That is, while it's true that a constitution (ours) where key clauses get a wink and not much more is worse than unfortunate, ... this is a classic case that even though MANY WOMEN feel - whatever the phrasing - that "our bodies, our selves" is axiomatic, I suspect that they are outnumbered by religious conservatives.
If the Supreme Court - as Ms Greenhouse points out, "pigs will fly..." - were to take Justice Stevens position, it's just possible that - given 2019 realities - the establishment clause might be repealed!
Yes, no man - I suspect - can walk in a woman's shoes on this one (i.e., REALLY "get it"), but there's something to be said for accepting a little nibbling here ... because were my worst fears realized, arguably more important things - let's start with "public education" - would then get shredded!
1
It's liberals who have weaponized the Establishment Clause by distorting it to mean that the US government must be the adversary of religion and religious agencies.
Liberals have argued that if the government has a program of making non-profit grants, that all non-profits are eligible, except ones with a religious affiliation. (ie, Trinity Lutheran case).
Liberals have made the legal argument that vouchers are constitutionally a-okay if they go to elite secular private schools, but unconstitutional if a dime goes to an urban Catholic school.
Liberals have said that a state's historical preservation money can be spent on any historic building, including ones that are
for-profit businesses and private houses, but not a cent can go to a church (even if it has overriding historical and architectural importance)
I oppose bans on first-trimester abortion, but if you want to bring the Establishment Clause into it, you liberals need to realize you need to back off on reading things into the Establishment Clause that were never written.
Greenhouse makes much of abortion being legal when the US was founded.
Ok then. Point taken. But so was state and local monetary support for religious education.
Dear Janet: it’s so nice to hear you slice and dice constitutional issues. I hope to be hearing from you more often.
The recently enacted state laws in Alabama, Georgia, Ohio and Missouri violate the Establishment Clause because they seek to impose Christian canon law on the entire country. Besides the ill effect on non-Christians and many Christians as well, no one in America should be subject to another person's subjective religious beliefs considering that the free exercise clause allows anyone to act in accordance with their own religion so long as it does not substantially impair the right of others.
6
Tax all religion. They are all involved in politics and should be taxed like any other business that lobbies government. Tax them all.
4
When will a lawsuit regarding the refusal to pay for transfusions for an employee of a company owned by a Jehovah Witness occur? Or, any form of healthcare by an employer who believes inChristian Science?
How about a wrongful death lawsuit for someone who dies due to complications from a term pregnancy when the women was denied the right to an abortion?
4
The claim that a human being’s life begins at conception isn’t religious dogma. Biology textbooks that explain life begins when a sperm fertilizes an oocyte and together they form a zygote do not violate the Establishment Clause.
The argument that abortion laws violate the Establishment Clause because some people express their opposition to abortion in religious terms is absurd. Some people cite the Ten Commandment’s “Thy shall not kill” admonishment to express their abhorrence of murder, but homicide laws do not violate the Establishment Clause.
2
@William Case it's not about "life"; it's about the "soul."
1
@Heather
Lots of atheists are against abortion. Besides, devout Christian believe souls cannot be destroyed. Most Christians congregations believe infants are innocent and get a free pass onto heaven if they die in infancy.
Thank you Linda! This is not a Christian country. The United States is a foundationally secular nation. The genius of the establishment cause is that we also insist on utmost tolerance of any and all religions. Christians and anyone who believes that life begins at conception will never be forced to abort a fetus. However, our constitution ensures that they must also allow others to follow their own beliefs
6
The first clause of the First Amendment was deliberate, was determined to prevent theocratical tyranny that all Europe experienced for over 400 years. Fear of Roman Catholicism was a legitimate fear. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”Today we have forgotten religious war in Europe, and we ignore the separation of Church and State at our peril.
Brexit has unearthed Catholic Protestant enmity in Northern Ireland. Most readers can recall the religious war, torture, and mass murder in Bosnia. Everyday the world is threatened by Islamic terror and internecine Islamic proxy war in Yemen. Yet here, in America, politicians scramble to exploit religious beliefs that deny the equity of over half of our population: women. How can women be equal when government can refuse them the right to govern their own bodies, their healthcare decisions, their sexual behavior, and their family planning? How can women be equal if in pursuit of a legal medical procedure they are compelled to be counseled against it, can be harangued in violation of HIPAA, and then be compelled to submit to Ultrasound and Transvaginal Ultrasound. Sex education, birth control, including Abortion, are opposed by persons who are driven by their religious convictions with no regard for the beliefs of others and denial of the First Amendment protection from religion. Every religion has been persecuted by other religions and done the same.
6
You are not a realist. Rather you have a fundamentally flawed understanding of the purpose and effect of the establishment clause. The Federal Constitution prohibits the government from sanctioning a church or specific religion (i.e., the Anglican church). It does not, however, prohibit the States from passing laws with outcomes that overlap with Christian doctrine.
Homicide is illegal. Do we run afoul of the establishment clause because the bible says "Thou shall not kill?"
1
@Alejandro
Laws against murder do not proclaim that their justification was from god.
When religion is put into a law as its justification, it is an endorsement of that religion by the government.
The simplest justification for the Establishment Clause of the First Amendment is provided by those who would jettison it themselves.
Imaging a world in which it was Shariah law and not thinly veiled Christian beliefs being touted. Politicians around the country have already railed against this prospect.
Shariah law is anathema to these legislators and in like measure there are doubtless citizens with equally valid rights under the Constitution from who Christian law is equally disturbing.
A just society with rights for all citizens cannot impress the views of a common and even majority opinion on its other members. Everyone counts equally. The only way to assure that is to deny "favored belief status" to any set of beliefs whether it is the Holy Trinity, the Prophet Mohammad or the Flying Spaghetti Monster.
4
The Republican party has offered the "Pro -Life" advocates both a home and a voice because the Republicans need their votes. It's often said that "once born you're on your own". There's no follow up by the"Pro Life" advocates which should be the message of the Democrats.
Who pays for an "unwanted child"....we ALL pay.
There's NO push by the Democrats to challenge the Pro Life message by only using the term "Pro Birth" and never using the term "Pro Life".
"You" want it...."You" own it .....here....
1
I always believed one of the strongest tenets of our constitution is the separation of church and state - looks like the battle is ongoing - as far as abortion is concerned - i have mixed feelings and it’s not my place to decide what women do. I will declare easily available birth control is a no brainer - even the Catholics in a super majority use it - almost everyone agrees this is the best way to avoid abortion( abstention - are you kidding me - even the priests don’t follow through). The backers of not paying for birth control are penny pinchers - it’s all about the Benjamin’s baby as my buddy Ilhan Omar would say.
2
Progressive politicians and even Conservative ones should be calling out the religious basis of abortion bans, because they make it a crime to base your life decisions on the Bible. The Bible clearly locates the beginning of life at either birth (first breath) or “quickening” (which is between 15 and 25 weeks). Where it mentions causing the death of an unborn fetus at all, it treats it not as murder but as a property crime. The Bible even recommends that a man whose wife has been unfaithful and becomes pregnant should force her to drink a potion that will cause her to miscarry.
5
"Abortion, by the way, was legal at the nation’s founding, and for much of a century afterward."
As was another peculiar institution that reduced a certain class of people to less than full personhood. Maybe we are making progress.
1
Create gods in the image of man and man and man's law will forever be twisted into conforming to such creation myths. All while we weaken the defense of all life on earth, our only salvation in the end.
The conservatives of the Catholic faith who are in the majority on the Supreme Court can no more wrap themselves in the papal banner than President Trump can hump the American flag at his rallies to justify their Constitutional misinterpretations. They are all determined to destroy our democracy for personal gain. They lack morality.
What I find ironic is that the very people who wish to break the bill or rights and the constitutional separation of church and state are the very people who claim to be "strict constitutionalists". They clearly haven't read those documents closely, and/or they don't have the educational backgrounds to read those documents critically. The very same people who claim false sincerity as "true Americans" decry education, they disapprove of religious freedom for ALL Americans, and they generally disdain Thomas Jefferson's vision for the nation.
These are the people Jefferson sought to protect us, the thinking majority, from, along with their vile attempts to impose extreme Xian values on a secular nation.
I suggest that all Americans eligible to vote should take a course in early American documents and philosophy. We can't move forward while being dragged backward by ignorance and lack of critical thought. Jefferson would agree with me.
For starters, everyone should read Jefferson's writings on the Virginia Statute for Religious Freedom, including his philosophical queries, particular Query XVII, in "Notes on Virginia".
https://www.monticello.org/site/research-and-collections/virginia-statute-religious-freedom
https://teachingamericanhistory.org/library/document/notes-on-the-state-of-virginia-query-xvii-religion/
Happy Reading,
Beanie
1
Thank you! I've been saying for year that extreme Christian theology is taking over our government. And why wouldn't lawmakers point this out? Political chickens
1
I see the radical left in media and academia are in full panic mode.
The latest abortion laws promulgated by the states have zero to do with religion, but everything to do with science.
The dictum in Roe v. Wade make these laws inevitable. As science progresses, and babies are viable earlier than they were in 1973, then protections for the life....as enshrined in our Declaration and Constitution...become paramount.
The worst thing to happen to the radical pro-abortion left, is HD ultrasounds and sonograms. When people see babies in the womb in vibrant color...they become pro-lifers.
It’s just science.
3
@Cjmesq0 - funny that you say "it's just science" after your blatant, unscientific comment.
Ultrasound is the procedure that produces sonograms. And sound waves to not produce "vibrant color" they produce fairly grainy monotone images - you made that up the color embellishment because you don't understand the science.
So tell us, Mr. Science, how much earlier is viability now than in 1973? Then prove that you are quoting science, not inventing it.
3
@Cjmesq0 I'm a scientist. They have NOTHING to do with science.
2
The Establishment Clause is one of the most important ingredients in our Constitution. It establishes our rights and freedoms. We can choose to believe whatever we wish without it affecting our laws. That means also the freedom from other people’s beliefs affecting our laws.
I would have a huge amount of respect for true believers who fight for their convictions. But this is not how this country is working these days. The same people who want their religion (Christianity) elevated and respects, show little to other’s religions. I would go so far as to say even Their own Christianity. They pick and choose belief based on their ability to attain power. They support a known liar who has cheated on multiple wives. They do not wish to promote life by providing health care. They loathe the poor and punish women. Their actions are many times the opposite of Christ’s teachings.
Religious freedom also means freedom FROM religion. The Protectant and Catholic faiths were the most powerful up until a few years ago. Now, it’s Evangelicals. In a few years, it may be Judaism or Islam. If you go to Hollywood, it’s Scientology. Utah, it’s Mormonism. Parts of Ohio, it’s Amish. Do we really believe that the Founding Fathers wanted laws changed on which religion had the most power at a certain time?
3
“Lurking in the background of this case is the argument that the Establishment Clause permits any religious favoritism short of actual coercion of non-adherents.” How long before the minority rule in our nation starts demanding proof of adherence to its “religious” beliefs? There is nothing about the religious right that is remotely Christ-like. Jesus didn’t care about money or power or forcing people to believe in Him. His ire was mainly aimed at hypocrites—those masquerading as godly. Phony piety that masked their desire for power and control over the lives of others. You can build the tallest cross in the world but it in no way makes you a Christian.
6
If life is a gift from God, He plays favorites, a very ungodly virtue.
1
The left is going to be very disappointed next year when the U.S. Supreme Court strikes down the Alabama law and upholds Roe v Wade by a 6-3 vote, with Roberts and Kavanagh in the majority.
Then they won't have anything to complain about.
Those who vilified Kavanagh ought to be embarrassed but they won't be.
Kirsten Gillibrand will be the most upset, having absolutely nothing to say.
Donald Trump will uncharacteristically say he will not argue with the Supreme Court, and he will be re-elected in another very tight race.
1
One must conclude that our “conservative” SCOTUS Justices are originalists only when it suits their own personal beliefs.
2
If Trump is re-elected, I may move to my ancestral country. Go Ireland!
1
A sadly realistic assessment of the erosion of the First Amendment's “Establishment Clause” as the politico-religious right savages the Enlightenment ideals of a secular culture our founding constitutionalists bequeathed to us. Along with article author, Linda Greenhouse, I feel a little dizzy contemplating the near cosmic irony of watching Ireland shed its religious shackles while our homegrown Taliban-like religious extremists re-forge them.
2
Great article, I never miss reading Greenhouse.
1
America can't reasonably be described as a Christian nation. I think we need a new word, 'christianistic' -- to mean a culture that has the trappings of Christianity and selectively applies some of the principles, while making up new ones and ignoring core tenets, such as care for the poor and sick.
Biblical literalism is not just some personal choice and constitutionally guaranteed freedom. It's now threatening to make any rational national conversation impossible. Nearly half the U.S. population believes that some Invisible Sky Daddy made the world in six days, about 5,000 years ago.
That doesn't just make a rational conversation about abortion impossible, it makes any rational conversation impossible. Global warming? It must be God's Will.
Me? I'm praying for a new Enlightenment, but I'm watching us enter a new Dark Age.
4
Well, hey, if life begins at conception those who fail to conceive like crazy must be guilty of being anti-life. With the theocratic Fundamentalist crowd in charge, this could become a felony. Yes, I know that's a stretch, but think about belief in a literal physical rapture of the faithful into Heaven "above the clouds" if you do not believe anything is possible for this crowd.
Unless and until we, the people, stand up to the bullies of the far right wing political evangelicals nothing will change. And that begins by electing politicians who are not afraid of these loud mouthed grifters and will stop appointing Catholic bigots to the Supreme Court. And a good first step would be removing "In God we Trust" from the money and "Under God" from the Pledge, restoring the status quo prior to the Red Scare.
2
Democracy is never the favorite form of government of minority political parties. Add that to the autocratic tendencies of Christian evangelism, coupled with the GOP financier's propaganda machines, and you get to where we are at today.
Court or Curia? That's the question.
1
I hate the phrase "almost exactly"
1
Don’t confuse morals built upon religious beliefs and religion. ‘Thou shalt not kill’. Does that mean any attempt to legislate against murder is religion based?
Thankyou for a cogent article. The hypocrisy of the religious right knows no bounds. They will save a fetus against a mothers will but have no compunctions against aborting soldiers in a trumped up war that supports their religion. I woud say shame on them but zealots have no shame.
2
To those democrats beating again the 2016 General Election drum of “I’ll never vote for xyz Democratic candidate because of xyz reasons”, or to those who don’t bother to vote in midterm elections: elections can have catastrophic consequences. Give Trump a sound beating in 2020 and help the next President have a Congress that is not composed of corrupt troglodytes. Vote Democrat - ANY Democrat.
5
All this over an act, abortion, on which the bible says exactly nothing. The United States has been a de facto theocracy probably from the beginning but functionally since Reagan. Just try taking "In God We Trust" off the money.
2
Agreed, because of the wisdom of the founding fathers for creating it and Lincoln for saving it, we by and large do not have the horror story going on in the Middle East now where religion was mixed with state and people have been killing each other since the time of Abraham, Moses and Moh.
3
Thank you for this. I am a lawyer, and contemplating these laws, it has always occurred to me they should be vulnerable to an Establishment Clause challenge. They are explicitly based in a particular interpretation of Christian dogma. I have never taken the time to look at the precedents to see if the argument has been tried before. You have educated me. I agree that this SCOTUS, with its conservative Christian domination, would reject such challenge even if brought by a person of another faith whose religious traditions teach that abortion should be lawful. I believe the Jewish tradition, for instance, teaches that life begins when the first breath is drawn, so personhood at conception isn't consistent with that faith. It is profoundly depressing that the First Amendment has been transmogrified by hypocritical and intellectually dishonest legal analysis to privilege the religious beliefs of some over others.
7
Even If the founders had wanted Christianity to be the official religion of the USA they were prevented from making it so because, like today, no one could agree on who was a ‘real’ Christian and who wasn’t. There would never have been a union of the states if they tried. The establishment cause is there so we wouldn’t end up with zealots going to war with each other as they saw in England and elsewhere. It’s a myth, nonsense, that secular principles embody some kind of libertarian do whatever you want ethic that is chaos. At this point we know that the the normal human desire for justice, tempered by empathy, compels us to protect the rights of citizens based on secular rather than religious principles.
1
Last summer I was run over by a bicyclist as I stepped out of a launderette where I was doing my laundry in Dublin. I went around the corner back to a pharmacy I’d noticed earlier to get a bandage for my scraped and bloody forearm. The woman behind the counter insisted that she clean up the scrape and properly bandage it, and offered firm instructions about when I should change the bandage. As I was preparing to leave she asked, “Visiting from the states?” I said yes. A moment of awkward dead air followed. Out of nowhere I said, “I didn’t vote for him.” She laughed and looking me straight in the eyes said, “What’s wrong with him?”
179
@WCB. And to think we were all embarrassed on prior travels overseas by George W......
53
@WCB The Irish are very polite people.
6
In addition to what Ms. Greenhouse has discussed in her column, we should also keep in mind the wide variety of religions and religious beliefs that make their home in the United States. We are simply not Christian, but also Buddhist, Hindu, Muslim, Sikh, etc.
9
I am a pro-life Catholic who SUPPORTS Roe v. Wade. For me it boils down to if someone wants an abortion, it's not my business.
I know kind, decent, highly moral people who have had abortions. Their choice.
And good for my ancestral home, Ireland, for the steps forward it's taking. Again, as a Catholic I will honestly say that for way, way too long Ireland was in the iron grip of bishops and priests.
18
Relegion steals personal freedoms. Your belief in heart beat nonsense steals my right to have an abortion and handles issues with my own body in my own way.
I am sick of what God wants. Who know what or if that exists. We have 20 Evangelical frauds laying their crooked hands on most demerit criminal, corrupt man to occupy the `White House. I rest my case, show then the door.
7
If the SCotUS can delete half of the Second Amendment......
1
Where have you been, Ms. Greenhouse? The theist's won years ago. Get used to it. Religious newspeak: ignorance is knowledge, delusion is reality, bigotry is sacred.
2
God help us!
1
Religion, all religions, is the true root of all evil.
4
We are clearly on the road to Christian shariah.
5
Look, anti abortionists are all about hating and punishing women for the unholy practice of having sex.
8
Every time I read an article about the laws that religious zealots are trying to enact, I recall these words by the Republican "Mr. Conservative" Senator Barry M. Goldwater:
“Mark my word, if and when these preachers get control of the [Republican] party, and they're sure trying to do so, it's going to be a terrible damm problem. Frankly, these people frighten me. Politics and governing demand compromise. But these Christians believe they are acting in the name of God, so they can't and won't compromise. I know, I've tried to deal with them.”
― Barry Goldwater
14
@Bobcb
That is stunning...many thanks!
1
I identify immediately with today's opinion piece "What Happens When Our Leaders Lack Moral Courage." Thankfully West Point are turning out future leaders who recite this cadet prayer.
“Make us to choose the harder right instead of the easier wrong,” the prayer goes, “and never to be content with a half-truth when the whole can be won. Endow us with courage that is born of loyalty to all that is noble and worthy, that scorns to compromise with vice and injustice, and knows no fear when truth and right are in jeopardy.”
What would the the Irish news columnist Linda Greenhouse quoted have to say about this cadet prayer? Too extreme, too religious right, lacking in truth? lacking in moral courage? In my view our culture needs a few more moral leaders who rely on honor, truth, sacrifice, and respect for all forms of life. In my view, a person calls oneself a leader when he/she sees injustice, half-truths, and lies; and does everything within one's power to defend all of the principles of the the First Amendment. Without name-calling and labeling, I think its time to hear some moral perspectives coming from people who defend the unborn, the voiceless, and the innocent.
In case you haven’t noticed, we are inundated with self-righteous “moral perspectives” these days. And that’s protected by the 1st Amendment. But leave the rest of us alone - we have our own perspectives about proper behavior and they are equally valid, even if you’re too narrow-minded to understand that .
1
Perhaps the fairest way to settle this issue would be to grant every citizen the right to seek prosecution and punishment for any breach of divine law or other crime of their choosing, including receiving or giving an abortion. In this way, everyone would have an equal right to practice their beliefs by personally opting out from benefits and protections under the law, such as Roe v. Wade. A special fund could be set up to cover the costs of prosecuting and punishing these individuals, but the state would retain the power to limit the expense incurred by sentencing. For example, penitents could be placed in the stocks for limited periods of time, to satisfy their conscience and the need to publicly underline the wrongness of their own actions.
But religious institutions pay taxes too! Oh wait, they don't.
8
If you are unhappy with today’s Supreme Court, just wait until you see who Trump appoints in his second term. As Justice Oliver Wendell Holmes, Jr., once said, “You ain’t seen nothin’ yet.”
1
God belongs in his tax free buildings and nowhere else: note I said in "his buildings" because God's gotta be a man because of the way his representatives in churches treat women as second class citizens.....At 74 I am really getting sick and tired of the divisive role so called christianity is imposing itself in public, private lives. Live and let live.
11
How is it we tolerate prayer before any government meeting? In Congress! How is it possible for “in god we trust” to appear on our currency? These things are wrong for the most obvious reason.
Sharia Law?
Biblical Law?
One is OK, the other not. If one is not OK, both are not OK.
8
The religious right is trying to bring back the Puritan theocracies of the original colonies...ones created where people fled from Catholic “depredations” in Europe and England to create oppressive and intolerant governments of their own...
Consider the treatment of Quakers and Baptists (not the only sects targeted) by the entrenched Puritan governments...the justification of genocide against indigenous peoples in the name of bringing “God’s word” and the white-man’s (profitable) conquest...
And the animosity of the religious right to women is the crux of the abortion issue...if the “life” of an infant was so important, they would not also be asking to stop paying for contraception by employers...they would not be advocating against “sex” education and safe sex practices...
5
You can now donate to the Satanic Temple, a non-theistic organization that promotes secular values in public life. The Satanic Temple is now recognized as a religious organization, so your donations are tax-deductible. The Satanic Temple works against any government establishment of religion, and includes among its tenets the absolute inviolability of an individual's body. Which is to say that to the Satanists, abortion is more than a right; it's availability and legality is a religious principle.
2
The allies and/or other political beliefs of the anti-abortionists in the GOP - those who support civilian ownership of military weaponry, those who separate children from their parents as they flee gangs of drug runners and pimps, those who idolize the 'heroes' who fought to maintain the right to own slaves, those who chant anti-Semitic and racist slogans, those who are fabulously wealthy but want even more tax breaks that require stripping food and shelter from the destitute; and their leader, a racist, a tax evader, money launderer for the mob who lies constantly and sells out American interests to further his own - tell us all we need to know about them. They are not patriots or Christians, they are simply intent on superimposing their personal 'religious' beliefs on everyone.
6
If we Americans had a referendum on abortion and results would be very similar to Ireland's.
5
@Christy
Except for the accents, of course.
If the religious beliefs of some are skewering laws to prohibit personal freedom, then we have a form of "sharia" don't we? A creeping fundamentalism.
Why not reverse the argument with regard to people, providers or their aides, employers or insurance companies, who do not want to have anything to do with abortion (or any rights that are conflicting with religious belief)? Since Roe v. Wade is the law of the land, they all can work elsewhere, for religious institutions. Why is the government,the justice system included or especially, in a position of having to keep pacifying religious views?
Part of the reason, as Greenhouse perhaps shows, is that people do not recognize that these ARE religious views. People therefore feel free to demand that what they believe is everybody's truth.
The Supreme Court has never ruled that a fetus is a citizen and has rights that compete with or even supersede the mother's rights. So the law, increasingly, stealthily keeps reaching into a woman's body, taking away her rights. It's time to face the real issue here.
3
There is no scientific, no secular basis for declaring an organism as simple as a single cell to be a person, and using that as a justification for taking control of a pregnant woman's life. The only justification for doing so is a belief in the religious doctrine of ensoulment at conception. To pretend that these laws don't establish religious doctrine in civil and criminal law is a convenient fiction and we all know it.
Christian doctrine on this subject isn't even stable. The question of when the soul enters the body has been a subject of controversy among Christians, both Protestant and Catholic, for centuries. It was in the middle of the nineteenth century that Pius IX decided that abortion in early pregnancy was grounds for excommunication. Many conservative Protestants moved from believing in ensoulment at first breath to ensoulment at conception over the last fifty years. The anti-abortion laws not only compel non-Christians to conform to current conservative Christian opinion, but also compel devout Christians who have different ideas on the subject.
But debates among theologians should have nothing to do with how our laws are made. This is a real religious freedom issue, and supporters of a pro-choice position are defending it.
6
@writeon1
A zygote (from Greek ζυγωτός zygōtos "joined" or "yoked", from ζυγοῦν zygoun "to join" or "to yoke")[1] is a eukaryotic cell formed by a fertilization event between two gametes. The zygote's genome is a combination of the DNA in each gamete, and contains all of the genetic information necessary to form a new individual. In multicellular organisms, the zygote is the earliest developmental stage. In single-celled organisms, the zygote can divide asexually by mitosis to produce identical offspring.
I've been puzzled why the Establishment Clause has not been taken seriously. I remember reading a summary from a Supreme Court opinion written some time in the 1980s that pointed out that of the many versions of language on separation of church and state to be included in the Constitution, the one finally adopted specified the most extreme position of total separation.
The founders apparently understood the danger far better than many of our contemporaries.
6
I am pleased to see this highlighting the elephant in the room concerning the anti-abortion movement. It seems taboo to state the obvious: it is a religious conviction that an embryo is a human being. It also seems obvious that reasonable people can disagree on the definition, and further understand that as a matter of opinion, the most invested party, the pregnant woman, should have the unfettered judgment on the matter. To allow otherwise is both a violation of the Establishment Clause and a violation of the First Amendment right of religious freedom.
7
Somehow we have to convey the idea that one way this is a great country is precisely because we protect and promote the well being of all citizens under secular law, that is, explicitly not religious law. This should be a source of great pride for Americans, not something to downplay.
2
There is not a single federal judge who would give Ms Greenhouse’s view on the Establishment clause any merit. No judge is going to invalidate a law because legislators of faith voted for it or justified their vote based upon their religious beliefs.
Never accept the framing 'Because god says so'. Always respond, 'Who'?
2
Organized religions are nothing more than people, usually males, seeking to control the behavior of other people. Those in the controlling group are either delusional or corrupt, but neither have anything to do with God, if there is one or more.
6
Secular freedom...how wonderful that phrase sounds as I say it aloud.
As an atheist, I recognize there is no such thing as God, and that there was no such person as a historical, non mythical Jesus. But as an atheist, I also recognize I will live the rest of my life in an America that will only honor those who pretend to see truth in the myth, an America that routinely mocks the establishment clause.
Churches should be taxed as are other places of entertainment.
But then, as this empire falls, it seems determined to fall just as Rome and Athens fell, strangled by rich, greedy families and their stupid religions....
Hugh Massengill, Eugene Oregon
6
Can't understand the hypocritical belief system in which human life is sacred in the womb but then expendable once attending school.
6
I gave pointed out more than once the error of having a Supreme Court majority composed of Roman Catholics.
3
@Rhporter - not necessarily a problem - consider that most US members of the RC church absolutely ignore their leadership's guidance on birth control, divorce and acceptance of homosexuals - not to mention many more mundane aspects of day-to-day practice.
Belonging to a particular faith isn't an indicator of adherence to every bit of what's supposedly the Rules for Living - something the far-right (and our President) routinely ignores when trying to demonize Islam in general, and like many on the right did in the 1960s when Kennedy dared run as, well, you know, a Papist.
We're not facing a problem caused by church members - it's the leaders and the lawyers they can hire or influence. Then it's the individual views of the Justices.
Should say: I have pointed out more than once the error of having a Supreme Court majority composed of Roman Catholics.
@Rhporter - and I still say that it's not pertinent. Sonia Sotomayor is Catholic, as was noted liberal John Brennan. So what rulings do you blame on this particular faith of justices who personally and professionally take positions across the spectrum?
Tagging someone as being a member of an organization as large as the RC Church ignores the extreme scope of viewpoints in that collection - from the pro-birth-control groups like Catholics for Choice to the ultra-orthodox who think the Latin Mass and suppression of women are things we need back.
"The Catholic Worker" is still being published today, and there are Catholics and other Christians who still feel more in tune with the fairly radical teachings that are in the Gospels as opposed to the more oppressive, authoritarian views of the leadership.
For all Christians that believe abortion should be illegal because life begins at inception (or anytime before actual birth): I think your bible disagrees with you.
Genesis 2:7
The Lord God formed the man from the soil of the ground and breathed into his nostrils the breath of life, and the man became a living being.
4
Religious exemptions should never trump individual liberties. Methinks this current SCOTUS lineup is more concerned with enforcing their religious beliefs than actually adhering to the law (balls and strikes, anyone?) or seeing justice carried out.
2
Nobody loves abortion! But protecting one's wife, daughter, sister from the results of incest and rape make it acceptable to me.
4
Could a Muslim, Jew, or vegetarian Hindu test Hobby Lobby and related rulings by refusing to pay for health insurance that covers pig-based heart valves for their elderly MALE employees, a key Republican constituency?
6
That would be fabulous!
Or Jehovah’s Witnesses refusing to cover blood transfusions.
2
Unfortunately, there are too many right-wing catholics on the Court who take their marching orders from the Vatican.
Coupled with the hypocritical evangelicals and this is what you get. Soon they'll be lawsuites to allow crosses to be hung in the classrooms of public schools.
3
Perhaps if those people who push religion like a barker at a carnival gave generously to scientific research, the origin of life might be revealed without the mumbo jumbo and who knows in time what happens after death, the real 800 lb gorilla in their rooms. Until the time arrives when they have that eureka moment, may I suggest that they keep their notions to themselves and their noses out of my private life.
3
I had to chuckle a bit - the NYTimes has, wisely, no favored pics on the topic. Hopefully, the Supreme Court will take your lead on ‘establishing’ ....favorites.
Oh ya, don't you just love the 40-foot cross! What sicko would do such a thing? And, to the birth control issue and other men trying to tell another what is right for their reproductive being, I’m living the heartache. For way back in the 60’s the doctor gave my Rh-negative mother birth control, but she, being staunch in her faith, threw the pills in the trash can. Of course, they were a little too late as she had already lost her second child at six weeks, triggering a nervous breakdown. Had already had several miscarriages, including twin boys. Had born a blue baby girl, who was handicapped all of her life, until we lost her fighting breast cancer (no history in immediate family- hmm?). (Everyone should have to go through that fight!) And last night I cried, as my handicapped brother cried and cried because he couldn’t come over to my house on his usual Wednesday night. Another resident was found, by his visiting 80 year-old mother to be sleeping in a bed full of bed bugs. The exterminator claims the worst case of bed bugs he has ever seen. And now, the mother’s home, who has never known bed bugs, needs to be treated also to a tune of $1000+. The mother isn’t wealthy. And if they show up in my house, I will choke somebody. Welcome to the USA - home of the biggest gd hypocrites the Holy One could ever create! (And why does it cost $1000 to get rid of bed bugs?)
And I say this as a Christian: Amen!
And aiding and abetting the "religious right" in its quest to establish a state-instituted religion is the complete ignorance of most American citizens to understand just what the "Establishment Clause" means. How many citizens have bothered to read or try to understand the Constitution? Donald Trump doesn't--and never has displayed any interest in the intellectual or moral pursuits that pertain to this document.
He is a panderer, purely and simply, to the evangelical "Christians" who wish nothing more than to force religious viewpoints upon the body politic by giving them legal cover. And that the real issue is control--a woman's rights to her own person--is also slyly hidden, buried in the legalistic arguments that the right's proponents argue before the bar.
As to the absurdity of Alabama Governor Kay Ivey's "this legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God," one might also posit this fair question: "When have Alabamians ever held that 'every life is precious'"? What of the life of the mother-to-be?
6
That many of the staunchest anti abortion opponents are also anti birth control, begs the question: how exactly can you hold both of these positions simultaneously? One answer might be that the real issue is sexuality - specifically women’s sexuality, which appears to threaten some male evangelicals.
8
Depending in one's age, the "public" display of religious or religious holiday expressions was very widespread, even to the point of nativity scenes. Few were perturbed outside the swank drawing rooms of the cocktail and Sartre set. Or, apparently, the study halls of mid-level law schools. Was anything "established" by this laissez-faire attitude of officialdom? Was anyone of an agnostic, atheist or pagan proclivity prevented from their view or reaction? No. Were their minds fevered? Likely. Just as the minds of the prudish and the cloistered fevered at the publication of Myra Breckenridge. Tough living with liberty, eh?
I have maintained for some time that the Evangelical Right has lost and/or ignores the importance and meaning of the separation of church and state in its quest to pass anti-abortion laws. Greenhouse, prompted by the legal mind of John Paul Stevens, reminds us of the importance of the establishment clause in the abortion "fight." The subtending struggle is over the establishment of a Christian theocracy (or any theocracy) in a pluralistic America. Think about it for awhile. People of the Jewish faith as far as I know do not pursue a political program against abortion, and yet, they have an abiding faith in the sanctity of life. What are Pat Robertson, Jerry Falwell and Franklin Graham really up to??
Hear, hear. There's so much about the evolution of our nation over the past 40 years - from St. Ronnie, to Jesse Helms and his moral majority, which was neither moral nor a majority - that is troubling, but the most troubling is our lurching toward a theocracy, which is so antithetical to our Constitution and our founding principles. The very people who see the impending doom of sharia law around every corner resemble an American Taliban, albeit one with the tyranny of a different set of religious beliefs it works tirelessly to impose on others. It's the single most frightening aspect of American life that is hurtling out of control, with 2/3s of the Supreme Court comprised of devout Catholics who think nothing of imposing their own religious values on others. Establishment Clause? What Establishment Clause? And while it's easy to lay the blame squarely at the feet of the evangelical movement in this country, their efforts have been not just aided and abetted by the Catholics (who, shockingly, haven't turned away from a church that effectively condoned the sexual abuse of children by its leaders), but legitimized by them. Add to this their wholesale rejection of science, and these forces make the prospect of a future America resembling the one depicted in The Handmaid's Tale a very real one indeed. Which brings us to the fundamental question: "Where are the voices of reason?" We were once a nation of thinkers, who took pride in our role in advancing science. What happened?!
5
No judge will strike down the Alabama law because the legislators were members of a religious group or that they said they passed it because of their religious views. Lord I hope slavery was abolished on religious grounds. This piece is based upon nothing and makes no sense. A law school professor would laugh at such an argument because it’s not even a constitutional argument.
Thank you for this piece. I have been steaming about thus issue for some time. As a student of European history, it is clear that the whole origin story of our country is the escape from Europe’s religious wars. It is horrifying to see religious views imposed on an unwilling population. Our religious choices should be personal and private.
4
“Establishment” is like “Collusion.” Easy to see but hard to prove.
I may not be able to define it, but I know it when I see it.
1
Opposition to abortion is not inherently religious. A cursory internet search will yield statistics showing millions of self-identified atheists, nones, and agnostics, as well as several secular pro-life activist groups. It's pretty ridiculous to tell these people that their political positions are unconstitutional because some other people maintain the same political position as a religious tenet.
1
It is scary how blithely the Establishment Clause is ignored. When a society begins to pander to and prefer a particular religious view, evil ensues. Aquinas thought human life began with quickening, a religion view contrary to the modern day evangelical Christians that human life begins at conception, which is patently ridiculous. Religion is so subjective and so variable over time that is a terrible measure of what's right and wrong for all. Religion can also be taken over by extremists like here in America where they seem to have forgotten that they recently allowed exceptions for rape and incest. While people in Ireland have escaped religion's irrational and oppressive bondage of illegal abortion, America is on the cusp of embracing it again. I actually do not have hope that our rightwing Supreme Court will adhere to the Establishment Clause given its horrendous upholding of Trump's Muslim travel ban. And so I am scared.
136
@Sherry--Nowhere in the U.S. Constitution are the words "under God" written. It is an entirely secular document.
Thomas Jefferson, in an 1802 letter to the Danbury Baptist Association, which wrote to him for clarification on the separation of Church and State, said:
"Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions,
"I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State.""
He references the establishment clause, states that religious belief is an "opinion" which government cannot base its actions on, and clearly reiterates the separation of Church and State.
Religion as a legal basis for any decision has no standing, given that it is a mere opinion.
27
@Lilou Let's hope the five, or is it six, members of the U.S. Supreme Court agree with you.
6
We have in my country, Canada, the same debate. The Québec National Assembly is discussing Bill 21. Which will defined Québec as a secular state and ban any public servant in a position of authority like judges, teachers, police officers, government lawyers wearing religious symbol. Of course all religious organizations (Catholics, Muslims, Jews, Sikhs,..) strongly opposed the bill with the support of the Liberal Party and even the left(?) wing party Québec Solidaire. In Canada we do not have the separation of the State and Religion. God is in the Charter of Right. Religious schools are getting money from the State. We have state agencies which accommodate the religious belief of their employees or the customers. For exemple if a customer said that his religion do not allow him to be served by a woman, the state agency will took the woman away and replace her by a man. Our Prime Minister, Justin Trudeau, went in a mosque which discriminate against women and praised it calling it a "strength" It just show that every time you introduce religion in the public sphere and the State, the big loosers are always the women at this columns demonstrated.
Funny how that works, isn’t it? It’s almost like religions were invented by a bunch of self-serving men.
1
Face it. The religious are using religion as a means to sidestep laws against certain types of discrimination. They have a magic spell, and I do mean magic, which is called, "A firmly held belief." Keep in mind that, for them, an Atheist by definition, cannot have a belief that can meet that level of integrity. That's specious on the face of it, but how often are they called out on that point? It's high time for more of us to speak out on this issue and push back.
9
Dr. Greenhouse correctly notes that the First Amendment forbids Congress ---- as opposed to the state legislatures of Alabama, Missouri, etc. --- shall make no law respecting .... religion. It has been Supreme Court decisions, not the text of the Constitution, that impose this restriction upon state legislatures. Further, abortion rights and prohibition, cross the bounds of religion, and are not unique to evangelist Christianity.
@DMH Have you heard of the 14th Amendment?
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
1
@DMH Actually, it is in fact the text of the Constitution that imposes restrictions on States, as interpreted by the SCT like any constitutional provision. The Bill of Rights applies to the States precisely because of the text of the Constitution — the 14th Amendment.
Recommending Karen Armstrong's writings on the issue of religious fundamentalism and its' abuses by powers in our world. Ironically, the issue of social justice has biblical roots, but fundamentalism is not grounded in them - rather fundamentalism betrays it. The anti-abortionists are trying top claim human rights with an approach that writes out the social reality of our person hood. This is problematic for it is merely the projection of their power - instead of the recognition of the relationships that essentially form us. Until we deal squarely with this issue we will keep finding fundamentalism skewing the understanding of our very humanity. Good article!
6
Perhaps the most egregious violation of the Establishment Clause, and the one that leads to all the others, is the tax exemption for organized religion. At taxpayers' expense, churches, especially Evangelical and Catholic ones, shamelessly deploy their political clout, using the power of the purse, the pulpit and the press to influence elections. Moreover, many churches operate as corporations, bestowing their bishops and preachers with limousines, private jets, and other accouterments of the extremely wealthy. Time to stop all this. What would Jesus do?
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These arguments have nothing to do with the establishment clause which his why the courts have ignored it. In most of these cases the federal government is pushing freedom OUT to states and people, not trying to dictate anything based upon religion. In fact they are distancing themselves from dictation religion or restricting religion, the key goal of the establishment clause in the first place.
Also, don't confuse religion and morality. In a recent study, 20% of agnostics/atheists are pro-life. That is obviously a moral, not religious stance.
And don't confuse constitutionality and belief. One can be pro-choice and believe that Roe v Wade was a constitutional farce, a pure activist decision creating a 'right' out of thin air. That the proper way to codify the concept of Roe v Wade is a constitutional amendment, not an activist court decision.
And one can disagree with the Hobby Lobby stance, but understand that it was a proper constitutional decision, that it increases freedom, does not decrease it, while causing no major harm.
The Hobby Lobby and Gay Marriage SCOTUS decisions, what do they have in common? They both increase personal freedoms. Which is why the GOP and Dems were 1-1 in these decisions while CATO, a civil libertarian think tank, was 2-0 in their amicus briefs.
@Marvin
The Hobby Lobby decision absolutely DOES cause major harm. It says that an employer has religious rights but the employees do not. So, it says that some people religious rights are more important than the rights of others.
4
The anti-abortion movement may be forcing itself to begin repudiating religion if it wants to continue to raise its claim of support for laws designed to protect the health of pregnant mothers and their babies.
The wave of RFRA laws this decade has created an avenue for women to claim a deeply and sincerely held belief in not bearing children in the absence of a father or in the presence of financial hardships likely to befall the child. Denial of the legal right to claim exemption from abortion restrictions that run counter to those beliefs would appear to be prohibited by state and federal RFRA's, as well as by the 14th Amendment. Limitation of that right to time periods not amenable to the time constraints of a pregnancy would raise fears of gender discrimination.
The only person whose religion should figure in the decision to seek a medical abortion is the mother herself.
3
Perhaps we should also recognize that Irish traditions may be seeing a rebirth of an even older legal construct than the English derived system practiced in some form in most of the world. That legal system from Celtic Times was called Brehon. It’s customs and underlying foundation is based on equality rather than hierarchy. The Irish saved civilization during the dark ages. We may need to call on them to do so again
7
@Marston Gould Interestingly, they saved civilization in the Dark Ages not because they were Irish but because, by that point, they were already Christians.
The deep core of Roman Catholicism at the heart of the Supreme Court is our current problem. Indeed this branch of fundamentally anti-human but pro-divine collusion takes us back to the middle ages when this particular superstition held sway over our European ancestors.
The Court preserves this pre and anti-enlightenment mindset just perfectly. We need a few atheists - or at least Deists - on the Court, and soon.
6
RLUIPA - a thumb on the scale of justice in favor of religion. And a mighty weight against local zoning laws when religious groups want to over-ride them. The threat of lawsuits invoking RLUIPA either silences or financially crushes opposition.
1
To define abortion as primarily a health issue is disingenuous. That brackets consideration of the developing fetus recognized as a person at birth by law. The source of the right to terminate this development by embedding it in the extrinsic issue of health is a deflection. This does not exclude consideration of health, but does not use it as the fundamental issue of maternity. The more basic question is “By what right does any person have to stop the development of a human fetus and therefore, the likely birth of a person?” The justification of that right is the basic issue.
@Bill Sr. The way you pose the question makes it clear that it is fundamentally a religious issue. A human fetus is not a human except in the eyes of certain religions. Throughout history, both in law and in most religions, we have not considered fetuses to be humans.
7
By the right that said fetus is growing inside my body; living off my tissues; displacing my vital organs; ripping my muscles, ligaments, skin and connective tissue.
I’m a human being, not a mobile incubator.
2
The Bible doesn’t consider humans to be fetuses either.
One of the mistakes in this debate is to constantly reference the "religious right." In truth they are more accurate described as right wing zealots who use religion for their political ends.
They are able to do this in part because of the silence of other religious groups and leaders. Whether life is sacred, or more accurately, whether 'innocent life' is sacred is an inter-denominational debate with only one side being heard.
Governor Ivey certainly doesn't think all life is sacred. Her enthusiastic use of the death penalty attest to that.
States that cut funds for pre-natal care to poor women increase the mortality rate of women giving birth and increase child mortality.
Why aren't those lives just as sacred as the ones that their anti-abortion laws supposedly protect?.
If religious leaders that favor abortion rights would become more vocal the court might be faced with whose theology these laws are really based on.
If members of the state legislatures that voted against these restrictions based their vote on an alternative theological view maybe then the court would have to decide whether the Establishment Clause permits supporting one religion view over another.
We are a religiously diverse country and any law supposedly based on religious conviction automatically lifts one religious view above all others. This is exactly what the constitution forbids
16
But why has this situation- the religionization of public affairs - happened? To me the reason seems clear: we misunderstand the Establishment Clause due to a failure to understand its historical context. In colonial America and in some of the early Republic's states there were official established churches, endorsed and supported by the various governments. The Establishment Clause was intended to outlaw that ancient custom, to establish no state supported church.
Jefferson's characterizing it as a wall between government and religion led to a misunderstanding, that it is a freedom of religion clause. It is not. It is a freedom FROM religion clause, that religion cannot be imposed on us. That it provides freedom OF religion is strictly incidental. This issue likely will not be turned around until we get back to the founders original intention.
That we have supposed "originalists" on the court is only one of the ironies of the situation. If they really were so, rulings to protect our right to be free from religion would be nearly automatic.
32
Yes. It is a freedom from state religion clause. Then, what follows is the free exercise of religion clause. The goal was not apparently a country full of people who had no faith, rather a people who could freely exercise their freely chosen faith. Or lack of it. Such a precious right we so take for granted. We are so blessed to be part of this country. What are we all fighting about?
2
Ms. Greenhouse writes that the "conservative" justices are pursuing an agenda of nullifying the Establishment Clause while elevating the Free Exercise Clause. I wish she had pointed out that, in doing so, those justices are deliberately misinterpreting both clauses, which as a matter of logic are inextricably linked. Together, they express the philosophical principle that freedom of conscience inheres in individuals, who should be neither impeded nor favored by the coercive power of the state, which must remain neutral & secular.
I think we should admit to ourselves that, with respect to the Constitution, the so-called "conservative" justices are in fact radical: they are deeply opposed to the liberal, secular nature of the First Amendment. Contrary to the Constitution's prohibition, Senate Republicans are now applying a religious test (opposition to abortion) to the appointment of federal judges, & those judges, in turn, have begun to apply a religious test to our laws.
21
Linda Greenhouse mentions the fact that abortion was legal when the US was founded and for a long period after that.
My understanding is that the reason why it was initially banned had nothing to do with the life of the fetus, but was due to the fact that abortion was at the time a very unsafe procedure that put the lives of women at risk.
So, if this understanding is correct, the modern religion-based attempts to ban abortion are quite unlike the reason for the laws that Roe v. Wade was addressing.
5
@Old Mountain Man Cyril Means revisionist history of abortion law. Truth is that while there were no statutory bans before 1808, English Common Law considered abortion criminal, especially after "quickening." You don't pass statutes to ban things that are not commonplace -- that there is no ban on artificial insemination in the 18th century doesn't mean that society was indifferent to the gametic origins of progeny, but that society did not need law to figure out those origins should be within a marriage.
@Old Mountain Man: My understanding of the 19rh century bans on abortion differs from yours. The newly organized medical profession decided to drive midwives from the practices of attending at-home births and also providing abortions as needed, and at a time of unreliable birth control, abortions were sometimes crucial to health and family life.
The physicians organized to criminalize abortion, put midwives out of business, and moved the practice of obstetrics into hospitals. Maternal and infant mortality rates probably dropped as a result, but abortion did not disappear when it became illegal, and eventually, the mortality and sterility rates from back-alley abortions became enough of a public health concern to drive a movement--a life-saving movement--culminating in Roe v Wade.
That movement is now stymied by a death-driven pseudo-religious backlash. Let us not forget that 19th century physicians were male, and the midwives were female. It was then and still is a question of who will control women's reproductive rights.
I believe a close study of 19th century medical history will support my perspective.
4
@Old Mountain Man
I thank John and Mary C. for their comments.
As I say, it was my understanding, and I was not certain of the information. The connection with the medical profession that Mary C. mentions is very interesting and it may be a garbled version of that that I had heard. And, the "quickening" guideline that John mentioned is also something I had heard of in terms of the Catholic Church's beliefs (prior to the 20th century).
For someone who has no problem reading the Second Amendment in a narrow cramped literal manner (A well-regulated militia...), Miss Greenhouse so easily reads the Establishment Clause way beyond the words of the text. The clause says that CONGRESS shall make no law respecting an establishment of religion. It does not bar the President or the federal courts from making a law respecting an establishment of religion. And it does not bar State legislatures, courts or governors from making any law respecting the establishment of religion. (Bizarre and arbitrary interpretations of the 14th Amendment were needed to do that.)
1
Yes, but you’re being too clever by half.
Under the constitution, neither the executive nor the judiciary makes law. Congress does, as you know. The executive carries out the law. The judiciary decides if the executive’s enforcement is lawful.
While it’s true that regulatory rule-making and stare decisis both have the weight of law, that’s not a get-out-of-jail-free card for the president or the courts. Congress still made the law, however indirectly. The entire national government is enjoined, not just congress.
I wonder what kind of country you want to live in. One in which the 14th amendment guarantees equal protection under the law, over and above every other law? Or one that applies only insofar as the federal government is concerned?
A 14th amendment that doesn’t supersede state law is the legal regime that undergirded Jim Crow for 90 years.
Americans either have rights as Americans or they don’t. I’d rather live in a country where they do. All of them, everywhere.
4
Regarding the 2nd amendment- as a docent at Monticello many years ago, I had the luxury of reading the letters to and from Jefferson, Madison and others. Based on those, I would offer that while they wholly believed owning a gun was a mans right, they also believed that providing said right came with the right of the government to call on any gun owner into defense of the nation. Given that framework, one could argue that gun ownership today necessarily makes all who do so members of our citizens militia, today known as the National Guard. Therefore Governors should have the right and ability to muster and gun owner into service.
2
@SHerman. Presidents don't make laws except as specifically authorized by Congress. Courts don't make laws, they interpret them. One of the most important features of our democracy is that the Bill of Rights applies to the States.
2
For any change to happen in America, it requires us to (a) recognize we are NOT a great country (but have the capability to be), (b) remove the pernicious effect that establishment special interests, politicians, media and politicking (e.g., punditry and lobbyists) bring to the table and (c) remove Citizens United.
In other words, I am not sanguine about change.
6
@FurthBurner Citizens United increases freedom, does not decrease it. The remedy is easy, add a constitutional amendment. Fact is, all the hand wringing about CU was nonsense, it has not cause any new problems.
What we need is for folks to move to their civil libertarian roots and stop the federal dictations of the GOP and Dems and push as much as possible from the feds to the states, from states to the people.
We should all be cheering Janus, not because it weakens unions, but because it increases personal choices and freedoms. Same with Gay Marriage. Same with Hobby Lobby.
You can agree or disagree on the concepts, but you should be cheering the personal freedoms.
How is it that separating church and state is radical and unrealistic? A probable good outcome of the deplorable influence of evangelicals in politics will be the emergence of a powerful atheist block. Humanism and Science will win in the end - truth has a well-known liberal bias. I look forward to the day when we remove, "In god We Trust" from our currency and FL license plates. Or, in FL, give us the option of "in Science we trust", or Freedom from Religion!
9
While I'm personally pro-choice, I don't believe that the Establishment Clause provides a sound doctrinal basis to nullify anti-abortion legislation.
Pro-life forces can and will argue that the mere fact that a law may be motivated by religious tenets does not mean that a state may not justify the law on independent moral and public policy grounds. Thus, just because the Ten Commandments instructs "Thou shall not steal," a state clearly has a secular justification in proscribing theft in its criminal statutes.
As long as a law can be justified on both secular/moral and religious grounds, it is difficult to see how the Establishment Clause is applicable.
Thus, despite criticism of Roe v. Wade's "right to privacy" basis, those grounds would seem to be far more defensible than an Establishment Clause attack on anti-abortion legislation.
4
Antiabortion laws aren’t just motivated by religious belief. They are founded on it. They start by imbuing “human life” — and the sanctity of life — in the embryo or fetus. Then they say abortion is wrong because murder.
There is no secular basis for declaring an organism “human”. There is no scientific test to distinguish the pre-human embryo from the born baby, no line crossed with a sign reading “Now Entering Humanity”.
Any assertion that life begins before it can sustain itself — before viability — has no factual basis. It’s pure belief, exactly what religion demands and proclaims.
@Don Davis Spot on. The establishment clause is irrelevant in these cases. Especially abortion.
Clearly, given her citation of Webster, Greenhouse shares former Justice Stevens' rabid secularism. Happily, the Founders didn't, since the First Amendment can be read not as two religion clauses (no establishment/free exercise) in free fall and occasional conflict with each other that we wait for the judicial divines to adjudicate, but ONE religion clause, which supports free exercise, which facilitates that ONE goal by barring establishment of a particular Church (what the founders stipulated), NOT hyper-allergy to religion in public life per se (a deviation starting with McCollum and a hypersensitivity overdeveloped in the Warren and to a degree Burger courts, in need of some massive judicial benadryl).
@JOHN
John, your assertions are based on claimed knowledge of what our Founders meant or did not mean, as if you can read their minds. That is not a good way to support a counter-argument claiming that the vague language used by the Founders supports particular religious beliefs and practices, much less that they can be inflicted on non-believers. This is just motivated reasoning based on wishful thinking.
Leaving aside your inflammatory description of secular views as rabid, show us instead why such views are not in the interest of all citizens, believers and non-believers alike? What non-religious, non-superstitious justification can you offer in support of religious control over non-believer bodies, beliefs, and practices?
6
@Madeleine I plead the Constitution: an understanding of the First Amendment that was commonplace until 1947's deviation by McCollum v. Board of Education. Nobody before McCollum thought the Constitution required society to be neutral vis-a-vis religion (esp. what was called "civil religion") in general, only against particular religions as established polities. As for "inflammatory description," Greenhouse's characterization of "religion's grip on public life" and her invocation of the finding about when life begins in the Missouri statute--a finding consistent with Roe's admission that state's have interest at least in the "potential" (OK, so Blackmun plied fake science) life of an unborn child, which Missouri asserted, has nothing to do with the religion clauses, period (except for Justice Stevens and Linda's desire to beat that drum in this piece).
When we have representatives and Senators stand up in the halls of Congress reciting biblical scripture to support or criticize proposed legislation, this is a problem. By doing so, they are pointing to what they believe is a higher authority, and that the foundation of all that is good and right is in that book. Can you imagine representative Omar from Minnesota standing up in a speech to the House citing passages from the Quran? It would consume the news cycle for days, and she would be further demonized. But with biblical passages, we just yawn. Let's strive to keep our government secular.
29
A hundred times yes! The Establishment Clause should be treated with the same respect as the Free Exercise Clause--they were clearly meant to be read in tandem to create the right to exercise religion in private but also to create a public sphere free of religious coercion. This is not what we have today. I was raised Mormon; the first 20 years of my life was dominated by the dogmatic fervor of people who view non-believers as sinners. If We the People are to be free to live according to the dictates of our own conscience, we need to claim the right to a secular public sphere.
21
@Ritch66@Ritch66 They were not intended to be read in tandem but as no establishment as a way of fostering free exercise. The Constitution is not agnostic to religion; the Constitution supports RELIGIOUS freedom.
The anti-slavery movement was chock full of religious zealots (e.g., John Brown). Should the slave system have been maintained so as not to "impose" someone's religious beliefs on someone else? The mid-20th century civil rights movement was pushed forward by many religious leaders (e.g., MLK). Did that make it constitutionally illegitimate? People come to their views on public policy issues many ways. Just because some or many people ground their views on a particular issue through their religious beliefs doesn't mean they should have no voice on the matter. And it certainly doesn't violate the Establishment Clause.
3
@Tom. These are good questions, but I will note that Greenhouse argues that religion should not be used as a reason for taking away an individual’s right. So she frames it more narrowly than saying it should not influence policy debate. Still, I’d like to hear her response re the abolitionist movement.
4
@Tom, religious people having a "voice" in framing public policy is not at issue. Of course the U.S. Constitution guarantees freedom of speech, expression, and conscience. It confers on no one, however, the right to deprive others of their free exercise of conscience.
The historic changes you cite do not result from religion's "voice" in the public forum. Ending slavery meant recognizing the "unalienable" right to moral autonomy of the enslaved. Ending segregation and Jim Crow meant recognizing the equal and unalienable right of ethnic minority persons to education, employment, public accommodations, and all benefits and burdens of citizenship so that they could fully exercise moral autonomy. Similarly, recognizing women's right to control their reproductive lives is also a matter of securing their moral autonomy and, with it, the fullest possible development of their personhood.
Indeed, any religion that strives to deprive any segment of the population of moral autonomy is a sham, a disguise for exercising power over the deprived group. There is no virtue in being coerced, no blame either, because the morality of an action depends upon freedom of the will.
Ms Greenhouse is mistaken only if she takes seriously the anti-choice movement's claim to be acting on religious motives. I suspect she seems to recognise their religious argument only for the sake to offering an argument against it.
@Tom Religious belief was also invoked as a reason for slavery and segregation.
A hundred times yes! The Establishment Clause should be treated with the same respect as the Free Exercise Clause--they were clearly meant to be read in tandem to create the right to exercise religion in private but also to create a public sphere free of religious coercion. This is not what we have today. I was raised Mormon; the first 20 years of my life was dominated by the dogmatic fervor of people who view non-believers as sinners. If We the People are to be free to live according to the dictates of our own conscience, we need to claim the right to a secular public sphere.
1
I am whole-heartedly for a separation between church and state -- but my mind can't help wonder what would happen if we had a law that disallowed abortions only for Christians? They're the ones who are most concerned.
13
Isn’t it shocking that the so-called originalists, who now dominate the court’s collective belief system, ignore a fundamental tenet of the Constitution and Bill of Rights?
Sadly, it is not shocking enough. Thank you for an important piece, Ms Greenhouse, and for recognizing Justice Stevens’ important dissent. His memoir is making it on to my book list, after all.
The evangelical Christians who are wielding their power (enshrined within the ironically named Federalist Society) will continue to overplay their hand. The real question is, “Who will stand against them?”
And when?
63
@Paul Ruscher: Aren't these the same people who are now called Reds, and who don't want us to turn up the heat on Russia?
John Birch is turning over in his grave.
1
I will stand up to those “EC’s” anytime, anyplace, anywhere ! Count me in !
For the record: Jesus was a wonderful HUMAN BEING whose life was sadly cut short.
Of all the lies that have become the tenets of the modern Republican Party, the two biggest are that Republicans are "conservative," and that the their base of so-called "evangelicals" follows the teachings of Jesus. It's pretty obvious to most of us that they really don't care about or follow most of what's in either the Constitution or the New Testament. The credibility of the Supreme Court is at a new low in modern history after the fiasco of McConnell's, Trump's, the Federalist Society's and Heritage Foundation's appointments of their two chosen ideologues, and if the Court blasphemes the First Amendment by giving religious extremists any more power/control over Americans, that may be the end of the Union, and the beginning of a militant movement toward separatism of the Blue States. A majority of Americans are trying to make a go of it in the 21st Century, and will not stand for five zealots in black robes attempting to take us back to the 1850s, or is it the 1750s?
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@Cowboy Marine
Nope, those five zealots in black robes are attempting to take us forward to the 2050s.
What most people do not get is that the so-called abortion rights issue is not about abortion. It is about freedom of conscious and the freedom to believe in whatever religion, philosophy or world view and live by it. There are certain things in this universe that can only be defined by ones religion, philosophy or world view. It is precisely this reason why the American Society choose to emphasize the Freedom of Religion and to keep The Government out of it. The people who want to define for me, or anyone else, when life starts is doing so in the face of that concept. They are denying me and anyone who has a religion, philosophy or world view that say life begins at a different time their right to their freedom of conscious. If in the end the Supreme Court does not "get" what I have just stated above and strikes down the intrusion to others religion, philosophy or world view then an argument can be made that the basic social contract has be broken. A broken social contract means that individuals in the United States are then free to engage in any and all measures to secure their inailable rights to freedom of their religion, their philosophy or their world view to live by. The enivitable outcome of this will mean internal terrorism, and a police state to tamp it down, at the least or an all out civil war at the most. Are the people who want to pick when life begins for others ready to pay that price to push their views on the rest of us?
12
@JD, perhaps your last sentence was meant as a rhetorical question. But let's look at where most of the anti-abortion, anti-woman fervor is coming from: the former states of the Confederacy. They had no problem seceding, an act of treason. They had no problem turning back all the gains of Reconstruction, and carrying their horror forward (and codified) in to the 1960s. And here we are. Let them go, I say.
1
@JD I think you mean conscience.
It always amazes me how justices who claim to be strict Constitutionalists like Neil Gorsuch and Clarence Thomas will pick and choose from the constitution what upholds their personal beliefs. To some extent all justices do this because our constitution does not fit all of our modern situations. But conservatives who hide behind behind the constitution as they apply their own moral standards are Supreme hypocrits.
24
This type of Constitutional cherry-picking is remarkably similar to the type of religious cherry-picking also exhibited by these justices, as well as the so-called fundamentalists. Were these folks all to adhere strictly to all tenets of the Bible equally, rather than simply those that conveniently supported whatever position they want to enforce in the moment, they would find themselves in a much less comfortable position. Sorry, Gorsuch - no more cheeseburgers or shrimp for you! And that cotton blend shirt you've got on? Forget it. And Kavanaugh, the (formerly?) drunken profligate would be in deep yogurt as well. Lastly, Deutoronomy strictly forbids the attempt to forcibly convert others to another religion. I'd say these guys are failing spectacularly on that one. There needs to be the removal of all religious justification from legal decisions, although the 1st Amendment clearly supports the freedom to live your religious conscience - as it applies to you. That seems to be the biggest disconnect here.
1
Christianity is mentioned nowhere in the body of the Constitution. The only nod to it is in the signature section at the document's conclusion and there only as a reference point concerning the date the founders signed the parchment.
There are historical and political reasons for that.
Yet so-called originalists on the bench, on the floors of Congress, in state houses and at Klan meetings continue ignore the Establishment Clause and place fealty to Christianity above their loyalty to the Constitution.
As opposed to many things contained in the Western World's shortest constitution, there is zero ambiguity when it comes to the Establishment Clause in the U.S. Constitution. The framers made sure of that.
18
@James J, well put. And as I always point out to the religious zealots-- the FIRST is first for a reason. Its freedoms are central to who we are as a nation, as a We the People. They were revolutionary thoughts in the 1700s! Slowly the first is being chipped away in a modern time where power is accruing more and more to those who are anti-modern. Who share little in common with the "men of the enlightenment" who wrote our core document. Zealots like Pence are the antiithesis of folks like Madison, Hamilton, Jefferson.
3
@James J
Many of the Founders followed a now-extinct religion called deism. Deism preached a wise creator who built natural laws into the universe. Deists disdained miracle stories, because their deity would not violate his own laws. Studying the laws of nature was a better way of worshiping their deity than going to a church. A scientist would have better judgement than a priest, particularly a priest who worked for a politicized church as in England.
1
The question of where the Establishment Clause ends and the Free Exercise Clause begins permits politicians to interpret (manipulate) as they are want to do.
Should the answer not be that the Free Exercise Clause ends at the door of a faith's house of worship? In other words, when a faith seeks to practice its beliefs in the public arena (outside of its house of worship) arguing that its free exercise rights trump an otherwise constitutionally guaranteed right of other Americans then it is prohibited by the Establishment Clause.
Of course we do not expect logic to prevail. Religions follow no logic. Their practitioners act upon faith and they do not care a whit that legislating their religious beliefs trample the rights of others who do not adhere to their myths.
20
Sorry but I am not aware of any faith that is limited to time inside a house of worship. Nor I imagine were founding fathers.
That is a tiny part of the exercise of religion- that is just going to a house of worship. You might consider what Dr King would have thought on the idea that religion exists only inside a church.
1
@JABarry How many times have we seen prevailing "logic" fail?
Religions and values systems are the same thing. Both are codes that try to allow mankind to live together in peace.
Science 50 years ago said it was logical to feed me 400 birth control pills a day in while I was in the womb. Later science proved that logic was garbage and based on false data and poor interpretation of data.
Some have faith in science which is a tool not truth while other have faith that man is not as smart as he thinks he is.
My health proves you wrong.
@JABarry "they do not care a whit that legislating their religious beliefs trample the rights of others who do not adhere to their myths"
And vice-versa.
In reality, we have a balancing act that the courts have to take a look at carefully. Kennedy seemed to have the right approach, look at the harm and if it is not great, do not infringe.
Take Hobby Lobby. The harm is basically nothing. No one is bound to work there. The few abortifaciants they were concerned with are not expensive, not used frequently. Folks could get the insurance directly. As such, there is not reason to infringe on the personal beliefs of the company founders.
We should all APPLAUD such decisions even if we disagree with the stance of the person or company.
Look at all the folks screaming about Janus and how it weakens unions. First, there are many states already that had this policy and unions are fine. But even if it did, what it does is move power from the union and give freedom to the individual. We should all LOVE this decision.
Thank you for this article. I am increasingly dismayed by this Supreme Court. Perhaps the greatest example of their religious bias, and unwarranted discrimination against religions other than christian, is the recent rulings on the right of death row inmates to have a religious presence of their choosing at their death. Christian pastors/priests are pro forma okay, but ask for a Buddhist, or god forbid (ironic), a Muslim, and you are out of luck, at least until they were called out on that one. And the great respect for life does not extend to an inmate wrongly denied the choice of how he dies, just because it's inconvenient for the Court to make a decision at the last moment. And don't forget the Muslim ban on immigrants and refugees, where the clear religious discrimination was excused because the "facial reason" stated was not based on religion. (The judge who ruled that Trump's financial documents should be produced because the "facial reason" for the subpoena should not be questioned may make the Supreme Court eat its own words. Interesting to see how they will work their way around that one.) This Court is busy making us a religious dictatorship. It is begging for reconstruction.
18
@Eero "Perhaps the greatest example of their religious bias, and unwarranted discrimination against religions other than christian, is the recent rulings on the right of death row inmates to have a religious presence of their choosing at their death."
They did no such thing. In the first case all they rules was that the plaintiff waited too long to make the claim, that it was not filed in a timely manner.
In a case after that, filed in a timely manner, they rules that an inmate in Texas had the right to a Buddhist leader.
So, the court has affirmed the exact opposite of what you are claiming.
The Establishment Clause prohibits a State Religion as was universal in Europe at the time, and forbids the Federal Government from establishing a particular religion or Sect as the Religion of the State as the Church of England was so established in 5 southern colonies, semi-established in 5 southern NY counties and the Congregationalist in New England. for some decades CT, NH and MA had state religions until MA abolished it in 1834 and the Supreme Court in 1848 ruled the Establishment Clause applied to the States. The Clause does not remove the right of religions to be in the public sphere but it does prohibit law-making based on a sectarian doctrine, deistic or not, rather than secular law though the result often coincide. The issue or abortion must be decided on legal, ethical, scientific criteria and not on sectarian religious principles. If religious persons do not want one or perform one they must not be compelled. Personally I oppose abortion on whim or because one doesn't like the baby's sex, after first trimester - not for rape, deformed fetus, health of the mother, incest.
6
@Alexander
"the Supreme Court in 1848 ruled the Establishment Clause applied to the States."
People don't often realize that in the early years of the US, the Bill of Rights was considered to apply only to the Federal government. When Jefferson fought for religious freedom in Virginia, he considered it a separate fight from the First Amendment, because the First Amendment didn't apply to Virginia. It was the Civil War and the amendments that followed that made it clear the Bill of Rights applied to all levels of government.
1
Thank you Ms. Greenhouse for shining a light on this subject. And we hear the VP Pence tell a graduating class that Evangelicals are being discriminated against - the old victim ploy.
We've got to get this religious right mess under control somehow. They are shoving their beliefs down our throats through legislation.
The wall we must erect is the wall of Separation of Church and State.
15
Reading this opinion piece and the comments leads to the logical conclusion that abortion supporters feel they don’t have sound arguments if there are saying the law should be declared unconstitutional because the legislators that voted for it are Christians.
2
@Shamrock We don't support abortion; we support a woman's right to choose without influence from ANY religion.
Thank you Ms Greenhouse, and thank you, NYT, for carrying her clear analyses of major legal issues. She provides the references, the context, in which decisions about the law have been made. This is one of the most important topics today. Passage of these religion backed laws does signify a slide into religiosity, and away from science and politics as a way to determine our way of life. And it also reflects a split in the civil rights we can actually exercise dependent on the state in which we live. How does that make any sense whatsoever in a constitutional democracy?
23
@cheryl
Would it make sense to declare a law unconstitutional if Andre Carson, my Congressman here in Indianapolis who happens to be Muslim, said he voted for it because of his Muslim beliefs? Of course not.
"Ireland marching proudly into the future, while the United States is reconfiguring itself into a theocracy that would have appalled our Founding Fathers."
It's because the last gasps of Boomers like me is to long for the days and times of our youth.
Play "Leave it to Beaver" on prime time TV and we'll be too distracted to ruin the country.
1
@BobWoods,
I was born in 1947 and I strongly support separation of church and state. No religion should be able to determine our laws. The “evangelicals “ who want to force their religion down the throats of Americans are religious fanatics just as much as the Taliban or the Islamic State. Leave It To Beaver should be renamed Leave It Alone. Or perhaps keep your religion to yourself or we will force you to practice ( fill in the religion of your choice here). My choice would be Ba’al ism.
@Bob Woods One might suggest instead that Ireland is retreating to the worst of its pagan past. In Roe, Harry Blackmun admits that the Hippocratic tradition banned abortion, but blamed the prevalence of Hippocratic ethics not on their intrinsic merit but because the Roman Empire became Christian. Better them old days when even newborns could be abandoned and die. Luckily, in modern day Virginnie at least the Governor is committed to making them "comfortable" as they expire.
Constitutions represent the will of the people. Things that are commonplace now were unthought of when our Constitution was written. We will always have problems and disagreements trying to solve todays problems using a 240 year old document. Ireland has a Constitution that is regularly changed to reflect the will of the citizens. It has a Constitutional Convention, 100 people, 65 of who are citizens randomly selected, which considers any amendment to the Constitution in advance to make sure the change is not just on a whim, but represents a necessary change.
Do we need a similar system to make sure our Constitution represents the will of the people in a way they can understand? Producing an answer to an important issue of public policy by sometimes bizarre judicial contortions clearly leads to anger and confrontation.
1
@Michael Feely
"Constitutions represent the will of the people. "
Constitutions SHOULD represent the will of the people. But in the US many provisions cannot be updated to match public opinion because of the extreme difficulty in passing an amendment. Lots of times people circumvent the amendment process by urging the Supreme Court to "re-interpret" the Constitution, which gives the Court exorbitant power.
@Michael Feely
On separation of church and state I believe our Constitution is already clear enough.
Since the key to making a case lies in an emotional appeal that resonates with people, how about pro-choice advocates start re-framing it that way?
Let's start with:
I will not let a gaggle of religious fanatics order me, my family, or my doctor around under the threat of jail if we don't practice their beliefs.
17
@Allen Bagwell
Would that apply to Muslims who said it was consistent with Shaira law?
@Allen Bagwell
The Supreme Court has never declared abortion a religious issue. That notion was just invented by abortion lobbyists to make criticism of Roe vs Wade look illegitimate.
@Shamrock
Of course- there’s precious little difference between fundamentalists of Islam and Christianity.
The framers tried their best to keep religion out of politics but their efforts have been largely ignored by the politicians. Even my car tag carries a religious message. As an agnostic, I find the practice of infusing religion in politics particularly annoying. Further, the laws in question are all based on the Christian religion when there are apparently thousands of different religions extant. That sounds like an establishment to me.
26
@Clark Landrum
I find it annoying that atheists want to participate in politics. Obviously I’m joking but that’s how these anti-religion comments sound. Ridiculous.
@Shamrock
Tales like Noah and the Ark are even more ridiculous.
My understanding of the Establishment Clause is that it provides for freedom FROM religion. Despite the thinking of many citizens, our nation is not a Christian country. No particular religion is specified as being the one defining religion of our nation. This does not seem to be a difficult concept to grasp. However, the same fear of loss of power that fuels racial issues creates a fear of “the other “ that may have a different God or no God at all. Originalists who can read should be able to see that God is not mentioned in the Constitution. They should rule accordingly. If not, then they are not Originalists, they are hypocrites who have no place judging anyone.
44
Let's be clear about what the establishment clause really says. It mandates separation of church and state, which are institutions. It does not mandate separation of religion and politics. Religion and politics are sets of beliefs and activities, sometimes ill-defined, and law against combining them would be meaningless and unenforceable. People of faith have contributed mightily to the abolition of slavery, the civil rights movement, and opposition to the Vietnam War because their faith led them to work for peace and social justice. I'm pro-choice, because I think banning abortions is questionable religion (what's the scriptural basis for it, anyway?) and bad politics. I also think legislative bodies should keep out of theology, because it isn't in their mandate or their skill set. But I don't see how doing political things for religious reasons violates the First Amendment.
4
@Philip Holt, "I don't see how doing political things for religious reasons violates the First Amendment". I think that's exactly the definition of theocracy. Shall we mandate that everyone attend Catholic Mass on Sundays (it is a sin not to if you are a Catholic)? Allow religious exemptions from military service as Israel does? Ban gay marriage because some religions say that too is a sin?
@Philip Holt
As someone with a masculine first name, you're unlikely ever to come smack up against a purely political but religiously motivated refusal to terminate a pregnancy likely to dramatically alter the trajectory of your life -- or even end it. Such an experience might alter your viewpoint.
Not only is the creeping intrusion of religion into law and public life unconstitutional, it is profoundly in-American.
The American colonies were founded for and by religious dissenters. They were fleeing Established religion.
When the time came to start an independent nation our founders were keenly aware of colonial history as well as the history of European religious warfare and tried to codify separation of state from church into law and founding documents. This seemed to largely hold back the tide until the 1980’s.
The current right wing politicians who want more religion in law and public life — they are unAmerican.
32
The author is devoted to making sure the government respects her interpretation of the establishment clause, while at the same time suggesting that it is the goverment's duty to ignore the exercise clause.
"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."
This has probably always been challenging to figure. We decided as a country not to allow polygamy, for example. But in America we would like our right to gather for worship, to not work on sabbath, to not participate in medical procedures against our faith, to dress in the manner expected of our faith.... these are also addressed in the first amendment.
It seems difficult for some to understand that faith is the center of life for many, and prohibiting the free exercise thereof is also against the first amendment.
6
Bravo. And finally, a credible columnist in a respected media outlet has pointed out that the abortion question is fundamentally about the First Amendment.
Pre-viability (at least) it's abundantly clear that prohibitions on abortion violate individual citizens' First Amendment right to freedom of religion and belief. After all, as Greenhouse notes briefly, not all religious traditions (by far) concur that a developing fetus or embryo is equivalent to a post-parturition human being from the moment of conception. Indeed, scratch the surface of most (though not all) of those with anti-abortion views and you'll find a belief in a soul (or something similar).
Fetal pain is not the issue; science has clearly demonstrated when that occurs (and it literally can be no sooner than 20-24 weeks). Meanwhile, infliction of pain and suffering is tolerated on sentient, intelligent creatures for no more reason than human pleasure (99% of pork in the US is raised in monstrously inhumane conditions).
Fetal "heartbeat" is not the issue; the "heartbeat" detected at six weeks is anything but. And again, creatures with much more sentience and ability to experience pain have heartbeats, too.
To such comparisons, many anti-abortion activists will say that humans are fundamentally different than animals. Press them further, and you'll soon arrive at something akin to a soul belief.
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A soul is simply defined as the form of a living being. There's no such thing as "believing in souls"; they are a thing by definition. The only inherent significance of a soul is 1) differentiating between animate objects (eg cows) and inanimate objects (eg rocks), and 2) inticating that a given animate object is distinct from others in kind and number (ie one cat soul encompasses one cat--not two cats, not a dog, not a cat and a tree).
The statement "a fetus has a soul" is really just saying that it is 1) alive and 2) a distinct being, and if they use the adjective "human" at some point, that it is 3) human. All three of those things are scientifically verified statements, so there's no controversy in the statement itself.
Furthermore, those three facts do not in and of themselves necessitate any given conclusion on abortion without a fourth principle that indicates whether such an object has a right to life.
In summary, when someone states that a "fetus has a soul", they are simply conveying in shorthand a set of scientific facts that do not in and of themselves constitute a position on abortion. Consequently, the statemt neither validates nor invalidates someone's position on abortion without some further principle.
1
@CB Evans
The author didn’t make a recognized legal argument. She argued a law should be unconstitutional because Christians voted for it. No judge would endorse such a ridiculous position. Many would be offended.
The founding fathers---which our conservative justices appear to hold in great esteem---were not religious individuals, and in fact were highly skeptical of these mystical belief systems. They had direct experience with Europe's clerical rein and wanted none of it. As we see today, with the Middle East a glaring example, theocracies never end well.
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Although many of our founders—prominent among them Washington, Jefferson, and Franklin—were skeptical of religious dogma, they were not therefore irreligious or hostile to religion. Most were deists who believed that God had established a moral law that human beings should obey, just as he had established the natural law that the physical universe obeys. It is this belief that underlay the Declaration of Independence and the philosophy of John Locke to which Jefferson appealed. The founders wanted to separate church and state, and doubtless they would have been appalled by the religious right and its crusade to impose its sectarian theology on the country. But they would have been troubled as well by claims that religious values have no place in the public square.
2
In Masterpiece Cakeshop, the Supreme Court avoided deciding the merits by claiming "animus" was displayed in certain statements by members of the Colorado Civil Rights Commission. Never mind that the statements were true. The Court basically said, toss the case back because of non-neutral statements on the part of government officials regarding religious conduct in the past.
The whole point of the Establishment and Free Excercise clauses is that government must be neutral with respect to religious beliefs. The courts have always called it the "neutrality principle"
The pro-life movement is 95% motivated by Christian religious beliefs about Conception being a sacred event. Conception is a core metaphor/allegory for the entire theology. It's lack is what gives the Jesus story power, for instance.
It all goes back to pre-medieval pagan sex cults, worshipping the magic of reproduction and sex and female pregnancy, etc., and converting them to Christianity through story co-opting.
If the Supreme Court had any intellectual integrity, a statement like Governor Ivey's ("deeply held belief that every life is precious and that every life is a sacred gift from God") said in her official capacity would immediately demonstrate non-neutrality and be a violation of the Establishment Clause.
That statement, and so many others of the religious forced-birthers, plainly shows an animus against rationality and the Enlightenment.
The pro-life movement is religious tyranny at its core.
201
Yes, I think the rationale in the Cakeshop case will come back to haunt the court. As it should. Particularly in the cases of all the supposed ‘conservative’ judges this Senate is salivating to confirm. Past statements, pre-judging certain positions- fodder for arguing, demanding recusal. But I’m sure it will be....distinguished, isolated, etc.
3
@Doug McKenna Thank you- I'm just another guy on the street, but this has bothered me from the start. What is more disheartening is that the Muslim ban was upheld 2to 3 weeks later. Here we have the President, showing animus at every turn, and it's all good by them.
So, Ms. Williams, no it will not come back to haunt them- they abandoned their own precedent less than a month later.
5
As always, Linda, cogent and clear. It troubles me just as much as the evisceration of the Establishment Clause that the Constitution's prohibition on a religious test for holding public office is also essentially a dead letter. Everyone running for president must declare his/her "faith" -- no one gets past the gate without it. Our tolerance for this egregious violation of constitutional principle undergirds the whole project of inserting religion into public policy.
76
Perhaps the difference between Ireland and the U.S. on the issue of abortion is the intervention of the Supreme Court. The country that was slowly moving in the direction of choice until the Court, in a very activist opinion based on a little precedent or grounding in the constitution stepped in and froze the issue for 50 years. What was and remains a political issue at heart never had the opportunity to evolve due to this misstep, and we are paying the price today.
8
@DRS
The problem with burning civil rights issues is that what legislation giveth, legislation also taketh away -- or even ignores rather than deal with heated beliefs.
At some point the federal courts have to step in and declare some kind of uniformity over civil rights cases, otherwise you get a constantly changing set of patchwork laws that treat people as criminals depending on what state or city they are standing in at any given moment.
The USA is similar to having 50 Irelands all bound under a federal framework but largely able to do whatever they want until their laws start bringing them into conflict with their neighbors. Waiting for 50 Irelands to all do justice by the country's citizens is simply ignoring the cries of those citizens.
@DRS
At the time Roe was passed, somebody asked why they didn't rely on the democratic process to settle abortion law. The answer was that "the Catholic church" was too powerful. Yeah, I'm sure the Alabama legislature was terrified of the Catholic Church.
Since law is not physics (wish it were so) and requires subjective interpretation (wrapped in the opaque trappings of logic), I choose to interpret it in the most general sense as "Freedom from Your Religion". Live and let live. It is a delicate balancing act of compromise. If done properly then no one is perfectly happy. My concern is that certain groups (e.g., evangelical christians) are much too happy these days.
12
@DrLawrence
Religious freedom for me means that I don't know who believes in what. I don't want to hear the word "god" or see you cross yourself or be expected to sit in a jury box with the words, "In God We Trust" hanging over the head of someone supposed to judge something. Why is it so much to ask that everyone just shut up and mind your own business?
Great comments from those who read Ms. Greenhouse's thoughtful piece.
It should be clear to anyone who can read that the Establishment Clause is, by itself, enough to invalidate Alabama's absurd anti-abortion law along with hundreds of others stemming from thousands of years of ignorance and indoctrination brought on by religion. That a large majority of the Court has long bypassed using the Establishment Clause comes as no surprise, however.
It is ironic that the fundamentalists jurists who call themselves strict constructionists pretend that the Establishment Clause doesn't exist. The truth is that strict constructionists only deploy this argument when it suits their own selfish ends, and this is where the real problem lies.
Judges use the law to do what they think is best - and religion indoctrinates its followers by teaching them that what is best are religious teachings. Until we create a secular society and get more secular judges, we are destined to be governed, in part, by the laws of men and women teaching creationism to our children, banning vaccines, and wearing magic underwear.
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Thank you Ms. Greenhouse for this column that provides us with a history and an update on this important Establishment Clause. I feel grateful for all her columns!
I worry about our country's future with this Supreme Court and its recent appointees by a President who has no idea what this is all about.
By the way, President Trump seems to care little about "morality", only about appeasing his base religious right voters.
How sad.
19
People cling to religious rules when government can’t provide safety- religious law is a side effect of Trumpism and a virtually nonexistent safety net.
10
The Establishment Clause may have been intended to avoid the situation in England, where the Anglican church had a privileged position. Some church officials even had seats in the House of Lords and were in a position to vote against democratic legislation.
The situation in the US is different: voters who let their religious beliefs influence their voting. Does this violate the Establishment Clause? How could one enforce it if it did, since one cannot read the mind of a voter unless they speak of the influence as the Alabama governor did? How does somebody distinguish "good" religious influence, such as the involvement of ministers in the civil rights movement?
It's not a matter of everybody "ignoring" the Establishment Clause, as Ms. Greenhouse claims. It's a matter of how it's interpreted.
3
Of course people's religious beliefs will influence their voting. And they will vote for politicians who claim to share their religious convictions, no doubt. But these politicians cannot use their religion as justification for passing any law. That's where the line is.
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@Charlesbalpha - It's easy. It should be against the Establishment Clause to pass laws that force any kind of religious belief on people.
Anti-choice laws, anti contraception laws, etc, do just that. Furthermore having to avoid looking at a 40 foot cross, like ignoring a cross burning in front of your house is difficult to ignore. so should not be allowed on public land. It forces religious beliefs on others.
42
@Charlesbalpha This is a confused argument. The Establishment Clause has nothing to do with religion influencing voting or what ministers can or cannot do. People are free to vote however they want for whatever reason they want and ministers are free to advocate for whatever religious beliefs they want.
The Establishment Clause is about laws and using the law and the agencies of government to force people to conform to religious beliefs they do not hold. If the basis of a law about abortion or civil rights is religion, it violates the Establishment Clause of the Constitutional.
It does not say anything about what beliefs an individual may hold. If you hold religious beliefs that forbid you from having an abortion or marrying someone of the same sex, you are free to choose to not have an abortion or marry someone of the same sex. All the Establishment Clause says is you can't use the agencies of government to force someone else to adhere to your religious beliefs.
11
Greenhouse is hardly the first to advance this argument about the grip of religion on our political (and therefore our social) lives. About a dozen years ago, the author of Nixon's Southern Strategy, Kevin Phillips, argued similarly in a brilliant book called "American Theocracy." One of his chapters is called the "Dixiefication of America" in which he traces the expanding influence of the Religious Right. What seemed novel a few years ago has become conventional wisdom today.
30
@jutland
I thought she was talking Constitutional law?
The Establishment clause is there to protect freedom of religion, not to move politics and the law away from a moral grounding. There is broad opposition to abortion from many people and for many reasons: religious, social, moral and personal. People speaking out against, or for abortion as a federal policy and a non-enumerated right are free to do so on any grounds - and so are religious and secular organizations. God bless us all in that. The comment of 'shackles' of the Catholic Church being imposed in Ireland in some strained sense has a grain of truth, but it is overwhelmingly pejorative, anti-Catholic and false - the law on abortion there historically reflected the moral sense of the country, led it is true by the Church. But then all laws should in some sense reflect and be based upon the values adn morality of the times and the people shouldn't they?
3
@John - Your argument completely ignores the rights of others. To force your religious values and morality on others is precisely what the Establishment Clause was meant to prevent.
You are still free to practice your religion. If you are opposed to abortion, don't have one.
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@John That does not negate the fact that laws restricting the private medical decisions made by a woman and her doctor on the basis of a religious conviction are unconstitutional.
33
@John - The "shackles" that were incorporated into law also tolerated the mistreatment of unwed mothers, and the production of countless orphans to be exploited and/or abused, often by religious organizations. These same laws, overly influenced by the Church, helped hide the reality of much crime. I'll spare the gory details. This is not anti-Catholic, it is history.
9
This is an important column that will most likely be ignored by many. Thank you Ms. Greenhouse for writing it!!
30
Thank you, Linda Greenhouse, for an overdue discussion about the Establishment Cause which has all but disappeared from not only opinion pieces but court decisions. It used to be a prominent segment in civics classes which have also disappeared.
An equally frightening aspect of ignoring tis clause is Mike Pompeo's frequent pronouncements during his roadshows as Secretary of State that his diplomacy is based on Christian values. Of course this is the same member of the cabinet who has a christian version of the Bible open on his desk at all times, using a pen knife as a bookmark.
31
Thanks to Linda Greenhouse for this important analysis. Perhaps it will form the basis for the long-term debate we need about whether the entire Constitution applies to American life or just the parts of it favored by one set of extremists or another. I'm thinking of the NRA and the Christian religious right here, although we are all held hostage not only by them but others who pervert the liberties provided to us by the Founders to serve their own narrow interests.
11
Both of the two last appointees to the Supreme Court are catholic and the product of catholic education. The use of the Free Exercise clause to bypass other civil rights is a troubling suggestion that the Court, at least on First Amendment questions, has become a catholic institution. Christianity unlike religions like Judaism is a highly aggressive religion and an obligation to carry the "good news" to the heathen throughout the world has always been an important part of the Christian mission. The prominence of Catholics among conservatives recruited for the judiciary does not bode well
for religious freedom in the United States.
82
@Michael Replace "catholic" and "Christian" in your above comment with some other group descriptor - such as black, gay, female - and perhaps you'll see how bigoted our comment really is.
3
@Michael should ANY Catholic be allowed to run for office in the US? Or is it just the judiciary they should be barred from? Isn't it possible to object to abortion on strictly moral, not religious, grounds?
2
The establishment clause is of course there for a good reason, to ensure our country's law is based on the rule of law, isolated from religion. To bring in religion is to breach the boundary of the rule of law, with foreseeable catastrophic consequences for civic life and individual freedoms.
34
@Robert
And what many who came to this country we’re trying to escape.
Enough European blood was shed over religious differences in the centuries before the American colonies were settled to inform the men of the Enlightenment who were our Founding Fathers that Organized Religion and Government were not a good mix.
Expulsions of Jews from England and Spain, the Spanish Inquisition, expulsion of Moors from Spain, the Protestant Reformation and Counter Reformation, religious wars between Christians and Muslims, endless battles over what is now the Netherlands and Belgium were fresh. The American colonies were settled by Puritans who thought most Protestants were not devout enough, Quakers fleeing from others of different beliefs, Anglicans who believed that the King of England was the divinely appointed head of the Church, Presbyterians who drove King James crazy in Scotland, Baptists, Agnostics, Atheists, Catholics, and Jews. Such were the backgrounds of those who wrote the Constitution.
In our current era, in which more people have become more highly educated, and exposed to others of different faiths, more Americans are less inclined to accept religious dogma on faith alone and more than 23% of Americans have no religious affiliation at all.
Despite the Roman Catholic Church's teachings, 98% of American Roman Catholics have used birth control at some time in their lives.
The Establishment Clause was a good idea then and a good idea now. No one's religious beliefs are more worthy than another's beliefs or non-beliefs.
Live and let live.
147
@JMT
or "do unto others as you would have them do unto you."
3
Protecting the lives of infants in the womb is not establishing a theocracy. This Op-Ed is devoid of history (what the Establishment Clause meant at the time of the framing of the Constitution) and devoid of medical information about the life of the new person in the womb (whose DNA is entirely distinct from his or her mother or father). What Ms. Greenhouse would like to establish is a secular baseline which is equivalent to atheism and is itself a religious position, as are Deism, or Agnosticism, and then assert that any position with which she disagrees is somehow "establishing a religion." Defending children in any woman's womb is not establishing anything except the value and rights of the child involved, although clearly, the mother's right to safety is superior. To criticize the finding that life begins at conception then must lead to the question: when does life begin? If the proposition advanced is that it begins when the heart begins beating, is that acceptable? The idea that women or doctors may take the life of children two minutes before birth is both morally grotesque, and indistinguishable from infanticide. There is no part of Ms. Greenhouse's Op-Ed that addresses any real issue involved in this controversy. She never, as abortion advocates never, talks about the development, personhood, DNA, heartbeat, prospects, hopes or potential lives of the children in the womb, whose lives are being terminated.
6
@Tom Wolpert -- as my high school biology teacher used to say, "Life began 4 billion years ago and hasn't stopped since." So there's your answer to that. "Personhood" is an incoherent concept applied to a fetus. You say the mother's life is "superior" to that of the fetus -- that's essentially saying some humans have more right to life than others. Shall we then compel a 90 year-old man to surrender his liver to a 20 year-old with cancer? Atheism is not a religion -- to have a religion you need a deity. People can hold the views they like and practice them in their personal lives. But the state must not favor one religion over another -- that is Linda's point, and abortion laws she cites violate precisely that crucial American principle.
24
@Tom Wolpert then I would assume you also understand the 2nd Amendment was written at the time to allow for the creation of citizen militias.
1
@Tom Wolpert you make a valid point that pro-choice camp rarely touches on the lives/potential lives of the 'children in the womb'.
Just as true: the pro-life camp rarely touches on the issue of women having autonomy over their bodies.
In other words, you've managed to point out 1 out of the two entrenched positions. Complaining that the 'other side' won't leave their trench, while simultaneously refusing to do anything but hide in your own is ludicrous (yet you're doing it, along with so very many others).
This debate has gone nowhere in decades because of this dual entrenchment. This debate will go nowhere until we stop looking at what others should do and start looking at what we ourselves should do to have a real dialogue.
1
Americans are weirdly blind to the intrusion of religion into the public sphere. Establishment Clause violations are so routine, that they are cited as proving that further violations must be OK. We have everything from theistic opening prayers at the start of legislative sessions (I've even seen this at the NY City Council, with those not participating with bowed heads getting death glares), to the word God being inserted into the pledge broadcast to public school students daily to "in God We Trust" on the currency. None of this is actually compliant with the Establishment Clause. Every anti-choice advocate I've ever spoken to eventually winds up backed into a corner where the rationale for their position is effectively "because I believe God says so".
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@Working Mama
Not understanding the Establishment clause. Are the Civil War Amendments unconstitutional because the moral stance of its supporters and legislators is based on religious beliefs? Of course not. Ms Greenhouse’s piece isn’t even a constitutional law argument. No judge will invalidate the Alabama law because it’s supporters are religious.
4
@Shamrock - Er, Amendments cannot be unconstitutional. Their purpose is to CHANGE the Constitution.
14
@Shamrock a law runs afoul of the Establishment Clause if a religious view is the only justification. Religious doctrine is not the sole source of morality, and there are practical, common welfare reasons for a great deal of legislation even if these laws are also consistent with some religious beliefs. However, express religious invocations at legislative sessions, for example, do not serve any non-religious purpose.
19
It is also interesting that there is an editorial about China’s control of religion. The religious right, a minority, would be happy, as would Trump, to dictate their edicts on all of us. As disappears the Constitution, so goes the democracy.
44
"The law contained a preamble declaring it to be a “finding” of the state legislature that “the life of each human being begins at conception.”
Justice Stevens was egregiously wrong in his view that this is a religious statement. It is plainly not, even if some people, for their own purposes, claim it is, and even if some people who state it are religious.
Whether the "life of a human being begins at conception" is a question of definition and of fact, and as such it is subject to debate, with valid arguments on both sides. No religious dogma or sentiment need be part of that discussion. When human life begins is a matter of biology and the definition of "life" - the question has nothing, zero, to do with religion – even if religion can and does weigh in on it.
Even if the outcome of the debate is that the fetus, or embryo, is a human being, it is then a separate question as to the state's interest in protecting its existence, as compared to, say, the interests of the mother, or, potentially the father. This part of the discussion is political, and again has nothing to do with religion.
The wild notion that attempted legal prohibitions on abortion are rooted exclusively in religion and therefore run afoul of the First Amendment is wrong at best, and is nothing more than the use of obfuscation to achieve dishonestly by fiat what cannot be achieved by public discourse in a democratic society.
7
@John Xavier III
So lets take the confusion out of it and let the decision fall upon the Dr. and his/her patient. Sounds simple to me. With that said, there is a much larger underlying issue in this opinion piece, religious fundamentalism. My opinion/translation of the 1st Amendment relative to religion is a citizen of the United States has the right to practice any religion he/she chooses, or none at all. It does not give the state or any citizen the right to impose a religious ideology on another citizen or use religious beliefs to decide how another citizen chooses his/her pursuit of life, liberty, and happiness.
61
@John Xavier III
It seems to me that public discourse is never a factor in legislation of this type. Just put these laws up to a popular vote, by the populace.
2
@Jay Schneider
"So lets take the confusion out of it and let the decision fall upon the Dr. and his/her patient. Sounds simple to me.'
Prime example of trying to achieve by fiat what you can't convince the other side of.
The point is, which you miss, that abortion rights is ultimately a political decision. If a legislature decides your solution, so be it. If a legislature decides otherwise, so be it. You can always turn them out in two years, or six, if you disagree with the decision.
But the left is afraid of political decisions on this subject. It is afraid it would lose. I am not sure it would lose but that's the fear. It is a fear of a democratic solution. Hence, bring in the courts and Roe v. Wade. And now you see the result - abortion wars 45 years later.
1
There is nothing more American than Apple pie or Puritanism. American Puritanism, the religious and social philosophy that created this nation's original witch hunt, has determined the underlying notion of our morality. Modern day Puritans believe only they know God's will and they are duty bound to enforce their interpretation on America. The constitution like the Bible can be read many ways. To Puritans, the constitution is read as a document that guarantees their right to enforce their religious views on everyone. Republican politicians have found the Puritan strain useful; give them a justice of two and they will back you no matter what else you do or say. Like gun owners, coal miners, and those who fear immigrants, loyal Puritan support is easily bought with a crumb or two.
28
The Establishment Clause and the Free Exercise Clause work in tandem to create a balancing act that is the separation of church and state. Ms. Greenhouse lucidly exposes the tilt that may tumble us off the wall into a theocracy. The Washington Post has an excellent article on the Federalist Society and Leonard Leo, who are stocking the courts with conservative judges: https://www.washingtonpost.com/graphics/2019/investigations/leonard-leo-federalists-society-courts/?utm_term=.a9ad1830ca42. Mr. Leo is a conservative Catholic, a religious label that now dominates our Supreme Court.
We need to restore the balance of separation of church and state -- good fences make good neighbors.
44
In the Hobby Lobby case, a reproductive rights case, the Court HELD that the plaintiff's belief that life begins at conception was a "deeply held religious belief". This is now the basis to attack the religious belief statues in addition to the other Constitutional basis for Roe v Wade.
Freedom of Religion and the Establishment clause are two sides of the same coin. Both are clear textually and the law since the beginning.
The only secular interests in abortion are safety and viability. 70% of Americans have a different religious belief than Catholics and Evangelicals. In fact, in 1789 there were no anti abortion laws. The first was a "safety" issue law in Connecticut in 1821. Even the Catholic Church did not have the same belief does today. That started to change in 1869, 80 years after the Constitution was ratified.
22
@Newman1979
" 70% of Americans have a different religious belief than Catholics and Evangelicals. "
That is true nationwide, but if Roe vs Wade is overturned abortion will become a state matter, and some states have a lot of Catholics or Evangelicals. And how they vote should be of no concern to people outside the state.
1
@Charlesbalpha - So if a state allows the religious practice of taking willing virgins to the tops of pyramids and cutting out their hearts, then holding them up, still beating, to their God, the people outside that state should not be concerned.
2
Can you specify how the Catholic church changed its position?
It would be my interpretation that what we should be talking about is what should happen when the establishment clause and the free exercise clause conflict, as they seem to in many cases. Once again, we have to trust the writers of the Constitution's ability to use simple English construction: they are NOT separate clauses because they are separated by an "or"! The "or" combined with "pass no law" means that both are prohibited. This is both simple mathematical logic, and proper English usage. So if EITHER right is trampled by a law it should be ruled invalid constitutionally.
Probably too much to expect that justices with Ivy League (6) or Stanford (1) college educations would know proper English usage or mathematical logic. Maybe the Holy Cross and Cornell grads can help them?
15
@Leigh LoPresti
How about some of our prestigious public universities like Michigan, Minnesota, Illinois, Berkley, UT Austin be represented? Justices from any of those universities would also give geographical and cultural diversity to the court.
@Leigh LoPresti Cornell is an Ivy.
We are at another crossroad requiring balancing of the establishment and free exercise clauses of the First Amendment. The reason, as you accurately note, is America's steady march towards theocracy. Christian fundamentalists now possess political power that is hard to comprehend, considering the constant decline in the number of people who identify themselves as religious. Abortion is not their only target. Gay marriage, contraception, teaching of evolution, any LGBTQ rights and the ability of others (particularly Muslims) to freely practice their religion are under siege. Until something is done to change the manner in which we elect the President, Americans will continue to lose their religious freedoms.
54
@Disillusioned
" Christian fundamentalists now possess political power that is hard to comprehend"
Christian fundamentalism became politically powerful because they were the only institution willing to criticize the Supreme Court when it removed an issue from democratic control.
1
@Charlesbalpha - So let's have a national referendum on choice.
@Disillusioned
Sounds like you only approve of certain religions.
1
It is very clear that much social legislation has a root in religion; as such it is vulnerable to sectarianism. That is why abortion and LGBTQ rights are such political battlegrounds.
Religions do not take consistent views on all matters. Analyses borne by scientific skepticism and philosophy serve us much better than ‘revealed truth’, which is nothing but a sham to preserve religious hegemonies. We need to legislate within a secular framework, informed by perspectives from many religious and non-religious traditions, science, and the humanities. We need secular arguments that rationalize legislation.
Recent events and legislative proposals reveal to us the intent of right-wing Christians and Republicans. They have no secular arguments to offer for their drive to control people’s bodies and civil rights — all they have is superstition, historical grievance, magical thinking, and fear — expressed by fear-mongering, sanctimony, hysteria, and hypocrisy.
I completely understand where Ms. Greenhouse is coming from, but we cannot push such a consideration aside. I cannot afford to do so, as I’m on my way to losing all the civil rights I’ve fought for for over two decades. I am not afraid of using every tool available to protect my civil rights, including legally challenging the existence of sectarian gods.
25
Just as religionists believe in things, I believe in the pendulum: when political matters swing too far towards one direction or the other, they tend to swing back. The more heinous the anti-abortion laws, the greater a backlash. True, we can't expect reason to affect Supreme Court judges steeped in ideology, but we (I ?) certainly can expect the voters to be repulsed by those politicians who hide behind religion in order to get cover for their hateful actions.
10
@eclecticoIt requires people to vote. That is why we have a country who believe certain things in the majority like access to abortion, some gun restrictions, better access to health to cheaper healthcare, less income inequality and are ignored by elected officials who hold their seats due to a minority. The fact is the majority are lazy and don’t vote! And that’s why we end up with a small slice of the electorate making all the decisions.
I used to say that the majority was “too busy” like most pundits do. They don’t have time to follow what’s going on because they are working sooo hard. I now say that’s bunk. We’re simply lazy. We have plenty of time for online porn, YouTube, Facebook, binge watching, filling up bars, having our kids on 3 different teams every season. You can’t tell me that people can’t read a newspaper every other day.
Depressing that judges aren’t tested on their objectivity and bias before sitting on the bench. Robotic knowledge is easy. Sifting through one’s own bias to reach an honest conclusion is where the work is.
13
Five of the current Supreme Court justices are Catholic. Gorsuch was raised Catholic but now is an Episcopalian. I suspect that this reality is, in part, what is driving the march towards outlawing abortion. Still, while the Supremes are free to exercise their religious proclivities as they see fit, they should not be allowed to impose those views on the rest of us.
152
@Susan Gorsuch went to an Episcopalian church because his wife is English/Anglican. His mother was a right wing extremist politician and conservative Catholic who tried to dismantle the EPA as Reagan's appointee. Gorsuch is probably less of an Episcopalian in his religious philosophy than the Pope. Like Kavanaugh, he reeks of arrogance.
6
@Susan
Well at least you are not applying a religious test.
1
@Susan What is horrifying here is that we know what religions our justices, and of all of our leaders, follow. Think of how ignorant these people really are if they actually do believe in gods.
3
Our congress has failed us when the leader of the house or senate can decide which proposals come to the floor for a vote. They should all get a vote- one that is recorded and published. This process of letting the voters decide in the next election has stymied us for the past 9 years
We can do one of two things
Mandate that all proposals get a vote
Or put it on the ballot and let the people vote
10
@Deirdre
Congress votes on so many bills no newspaper would ever devote time to even a small percentage of the total number. Watch C-Span if you don’t believe me.
1
Let's also not forget the parallel issue of religious tests for federal office, prohibited in the Constitution's Article VI. During confirmation hearings for federal judges over the last decade, Senators have asked specifically about a nominee's religious views and then expressed opposition to the candidate based on those views. Sounds like a religious test to me.
19
@R.K. Myers
I heard that some evangelical leader met with VP Pence and urged him to hire more evangelicals for the Civil Service. Of course to do that he would have to ask about their religious beliefs and that would be a an illegal religious test for office.
The article did not say what Pence's response was.
4
@R.K. Myers
More details please. Maybe they opposed them for the very reason this article sadly had to be written. And where are the atheist judges. Sounds like a religious test to me.
Ms Greenhouse cites one line in a dissent of a former Supreme Court Justice. That’s her entire constitutional precedent. Good luck on this argument prevailing.
2
@Shamrock
Please reread the article. Ms Greenhouse says several times that she doesn't think her argument will prevail. She only hopes the Establishment Clause will be remembered & that US citizens will also remember there was a REASON for its inclusion in the First Amendment..
22
@downeast60
Her readers think she is stating a constitutional principle that should be followed by the Court. I’m glad you understand she is just flaying in support of abortion rights.
1
@downeast60
Great. An argument that possibly prevail. What a great idea.
1
The Establishment Clause is an unequivocal declaration that in our governance we are a secular country. Separating governance from personal belief requires personal maturity, so there will always be a cohort that will feel unfairly restrained. Laws, however, are meant to support global freedoms, not freedom from internal dissonance.
To test whether a law is secular or religion-based, consider whether its basis relies on the condemnation of others for their convictions, not their actions. Example: a baker can refuse to provide a cake because they feel condemnation of their customers' life experience: where's the maturity in that? And now, proposing a doctor can refuse treatment options because their faith in the love of God allows them to condemn others? Internal discomfort with others' beliefs wins over healthcare?
Spirituality and social maturity need not be mutually exclusive.
34
@Satter
"To test whether a law is secular or religion-based, consider whether its basis..."
Court justices always have to reveal the philosophical basis when they make a ruling, but do statutes and other laws do that? For example, the 18th amendment gave no reason why alcoholic beverages were being banned, it simply proclaimed the ban.
@Charlesbalpha - Oh for pete's sake, when the 18th was passed there was tons of discussion about the evils of drink. Justification is rarely contained in a law or amendment.
4
Isn’t part of the problem the fact that in Ireland, the people voted and decided the issue, whereas in the U.S., the Congress has never acted decisively to protect women’s rights, leaving states like Alabama, Georgia and others free to act in an attempt to overturn prior Supreme Court decisions?
38
Why not? Why wouldn't judges refer to the clear constitutional language forbidding the use of religion or "god's will" to prevent individual rights? There were clear religious references made by the Alabama fundamentalist male lawmakers who took away women's rights and physicians' rights. And why wouldn't progressives use as a valid argument separation of church and state as enshrined in the constitution? I'm a progressive and these are the first arguments that came to mind in this current attack on women's rights as well as the right to privacy, the basis of Roe V Wade. Like too many pundits these days, the ability of "average people" to understand and think through the issues is being underestimated and if our current crop of candidates behave the same way it will be at their peril, and ours.
29
This Supreme Court is so fanatically religious, that it behaves more like they're conducting an Inquisition than interpreting th Constitution. Just listen to Brett Kavanaugh's disturbing rant about "liberals" and "left wingers," which, in and of itself, should have disqualified him from the court. Sadly this country is sick with religion and always has been. I am glad that you know the Constitution better than the justices seem to, and I am grateful to the founders for trying to keep religion out of governance. But until this court is dismantled, as it should be, nothing is going to change. The Supreme Court has ruined this country on so many levels. We are more violent, less healthy, less of a democracy, so divided economically, less educated, but boy are we more religious with our thoughts and prayers for everyone who has been killed because of the rigidity and cruelty of this Supreme Court. Kavanaugh is not alone in his hatred of liberals and liberal ideas such as equality for women and access to abortion - the Court is riddled with his type of thinking. It is a "moral" court in the sense that it seems to think it has a godly duty to amend the behavior of our citizens. Except for Ginsberg, Sotomayor and Kagan, this is an activist, moralistic court that doesn't really seem to care at all about law, only about controlling "morality." They are scary, they are old and they need to resign.
274
@Joanna Stelling - Don't forget Stephen Breyer who is Jewish, same as Ginsberg and Kagan. Sotomayor is also Catholic but liberal.
Gorsuch was raised Catholic but attends an Episcopal church, and his religious conviction has remained unclear.
So we have the Catholic and Jewish faith represented, plus Gorsuch.
I would love to have a few agnostics/atheists on the Court, but that is a dream.
22
@Pat Boice
I am anxious to see what Gorsuch's stance is on these matters. He was recommended for Justice of the SCOTUS by Sen. Cory Gardner who is a personhood fanatic.
3
@Joanna Stelling
Your comment about Kavanaugh should be shouted from the rooftops
7
The United States' structure is certainly showing its inadequacies. An outdated, preposterous Constitution; the elaborate, ambiguous amendments; the structure of the judiciary (lifetime appointments on party lines); state powers; unelected cabinet secretaries (they should be drawn from the elected party, as in parliamentary systems); the blurring of the separation of religion and state; Trump showing how inadequate the safeguards are when so many align with his corruption and power; the electoral college and the undemocratic Senate; gerrymandering; but you get the sad picture. All these are surmountable challenges in a functioning democracy, but your allegiance (when convenient) to the constitution and the inviolability of structure set in place three centuries ago, paralyses you. I see no way forward; there is only rapid disintegration and chaos.
17
@Terence
Most of these problems are unfixable, because they would require amending the Constitution, which requires a supermajority which doesn't exist. The Constitution's bar for passing an amendment is ridiculously high.
3
Great article. But the Republican Supreme Court will be the final arbiter of whether the Establishment Clause applies to these radical Christian attempts to force their faith on the rest of us. And it seems determined to push us down the path of the Republic of Gilead.
25
That’s what she wrote! No “but” needed!
I am old enough to remember a time in this country when religion was considered one’s private business not something to be worn on your sleeve out in public. I attended Catholic school. My family said grace before dinner each night. I was also taught by my parents that it was not appropriate to say grace in a restaurant because it was a public place. “Say it to yourself, it’s not for show” my mother replied when asked why. Separation of church and state was respected, overt religiosity was suspected precisely because of the Constitution. Perhaps this sentiment was not as widely shared as I assumed but it saddens and disturbs me to see where we are now. History shows definitively that forcing one’s personal religious beliefs on others is bad public policy. No one should have the right to dictate the behavior of others based on infinitely mutable religious beliefs.
474
@KMC - I started school in 1949 in the heart of the bible belt. There was no school prayer, no bible reading, and no discussion of religion, by community consensus. Parents wanted to teach their children their own religion at home and in church, and not have them confused by some teacher with who-knows-what religious beliefs. Once when I was in third grade, our teacher said a couple of sentences about her religious beliefs, and the next day there were very religious parents in the principal's office complaining. How things have changed.
50
@KMC - Exactly so! I was raised in a Seventh-day Adventist home with my father a pastor. He would never have mentioned politics or voting in any way - the church was adamant about the Separation of Church and State.
Have you ever eaten at a restaurant in Texas? Oh my! Lots of people hold hands and someone says the blessing out loud.
BTW, I've been agnostic for years now.
33
@KMC
Yes. And the fight about prayer in public schools? I've had people tell me about the "old days" when prayers were normal in public schools, They were not. (Not in my public school days, 1953- 65). An I remind them that my class had to relearn the pledge of allegiance in September 1954 after "under god" was added.
I resent that "ban on prayer" phrase: no one was ever banned from praying on their own.
This newer fundamentalist right is intent on, as your mother suggested, making a show of their religious tenets, and turning them into law.
56
The Times has, over the years, offered us some superstars: Hanson Baldwin, Nelson Bryant, Johnny Apple, Russell Baker, Gail Collins, and Linda Greenhouse lead the pack.
Ms. Greenhouse always offers cogent argument, accurate exposition, and realistic assessments. Were I President, I would nominate her for the next opening on the Supreme Court.
Facts and context unspoken in her piece this morning is that the Revolutionary-era congressional and Constitutional Convention delegates were elites -- by education, status, wealth, and inclination. The fundamentalist and related Trumpian fanatics are not. Like Jim Baker, Jimmy Swaggart, Jerry Falwell, and others before him, Trump exploits their ignorance and fears.
69
@Mack
Ms Greenhouse is confused about the Establishment clause and a law regarding abortion. She is standing on no principle. Just flaying against those who have different views on abortion. She makes the worst possible argument. Her opponents believe in a certain religion therefore the law they vote for is unconstitutional. Does this apply to Hindus, Buddhists and Sikhs?
"Ireland marching proudly into the future, while the United States is reconfiguring itself into a theocracy that would have appalled our Founding Fathers."
No expertise is needed to note that we are marching backward and others are marching forward. New Zealand ha started a legislation on gun control. Ireland has gone whistling past their Catholic Church's dogma. And in Saudi Arabia, women are now allowed to drive, arguable a low bar, but it is Saudi Arabia which has never gotten out of the Middle ages.
Lastly, thanks again for a wonderful column that is, as always written lucidly. I read your columns and use it as a civics lesson which I share with my kids. Thank you for that wonderful opportunity.
105
History is very clear on what happens in country in which one religion controls the governmental process. Sooner or later, a mixed government/faith coalition will find ways to discriminate against all others. I do not say that we'll be burning people at the stake, but it only takes a little journey down this road to find all governmental jobs, and thus their decisions in the hands of people of one faith. The Founders knew that; hence the Establishment clause. No matter how benignly it begins, or with how many good intentions, the end result has always been legal discrimination at the very least, and the Taliban as the most.
97
James, spot on! You’ve captured a key reason for the Establishment Clause.
I hope some of the religious zealots and arm chair critics out there learn something from Ms. Greenhouse’s superb analysis. Glad to see that most readers of the column appreciate her well-reasoned, and accurate, exposition.
16
Look at Utah if you want to see religious discrimination in practice. I had a potential employer ask me which church (or was it temple) I attended.
3
@Marsha Pembroke
The only problem is that she didn’t mention any recognized legal theory or argument.
How about the Free Exercise clause in relation to religion? My own religion has a much more nuanced understanding of abortion, and in my religion (Judaism) that decision is ALWAYS made by a woman, her doctor, and her religious advisor. The SCOTUS will take my right to choose at the expense of the free exercise of other religions than the Christian right wing.
229
@Comp
This is exactly the point. When Christian religious beliefs of judges overrule the rights of US citizens the constitution is negated. How did that become a rule? Of "god"? Which god? Who's god?
9
@comp: I sure hope that the Jewish position is stated clearly in a friend of the court filing. Many Christian rules conflict with other religions and must not be allowed to be put into the laws of the U.S.
We must maintain freedom FROM religion because each acts like it is the correct religion and all others are wrong!
5
@jab421
If 100 religions each claim to be the one true faith, then at least 99 of them are wrong.
1
Religion, law, morals and ethics are intertwined, and wishing it were not so will not make it that way. "Thou shalt not kill" is a good example. Striking down laws unrelated to the actual establishment of an official religion as an extension of the Establishment Clause will not serve the public good, but will only make more intense the judicial selection politics that undermines our institutions.
2
@Andrew The very nature of language further complicates the situation. 'Thou shalt not kill' is the wording, unfortunately, for the belief which is more along the lines of 'Thou shalt not murder.' Thus, 'killing' in the context of war, fr'instance, is just fine. It's not killing, after all!
@Andrew - There is a secular basis for murder laws. There is no such for anti-choice laws.
2
Religious moral teachings are deeply imbedded in Western culture, well beyond the issue of abortion. Religious moral codes prohibit theft. Laws against theft would not mean the establishment of religion. There are ample reasons for a robust debate about abortion ethical and moral. But the fact that there are religious precepts in some communities of faith that oppose abortion does not necessarily mean a limitation on abortion is an establishment of religion. The debate is fundamentally ethical and moral, with gray areas which explains the ambivalence in the society about abortion, and the need for ethical moral wisdom, not inflammatory political arguments and extremist solutions like those legislated in AL.
3
@Horsepower It's naive to think that religion created laws against theft, or murder. Humans did, and then turned those laws into religion(s). There is plenty known of pre-Judeo-Christian societies, or societies that have not been exposed to Judeo-Christian teachings (few, admittedly, today) that demonstrate the reverse of what you say. The point of the article is that our Constitution is eminently clear in proclaiming that one the courts employ religious belief to enact laws that favor or disfavor non-adherents.
11
The debate is, I agree, fundamentally one of ethics and morality. But, I would argue, in a free society - one in which we’re all at liberty to believe anything we want - morality operates at the level of the individual. The basic question is always, what ought I do? How should I choose? And the moral precepts I might employ to make my choice are themselves a choice. The state, as far as morality is concerned, is precluded both from determining which choices I make and imposing the moral principles I must use in making those choices.
But, surely, it will be countered, if I’m free to make my own moral choices I’m free to kill other people if killing people isn’t contrary to my personal moral beliefs. And others are free to kill me likewise.
While we are free to believe anything we want we are not, of course, free to do anything we want. So the question then is, what are we not free to do - which acts can be subject to legal prescriptions? And the simple answer to that, in a society of free and equal individuals, is any action which interferes or impinges or restricts the freedom of others. Killing someone, kidnapping them, raping them, for example, can be legislated against simply because these acts egregiously deny the equal freedom we each share.
No moral rules are needed to justify legislation and in theses cases personal morality does not apply, because morality is applicable only when we are free to choose, and in theses cases we are not free to choose.
1
@Horsepower
The right to bodily autonomy is an ethical issue: slavery. Nationalizing womens wombs for the benefit of society is slavery.
The horrors of the Romanian orphanages and the horrors of the Chinese one-child policy: two sides of the same totalitarian coin. It they can make you HAVE a baby, they can make you NOT have a baby.
2
Excellent article.
Arguably, the Establishment Clause is one of the most important parts of the Constitution, when one reflects on how terribly wrong governments that rely on religious principles go, and how much suffering that entails for people subject to their jurisdiction.
As much as that Clause needs to be honored and implemented, it would also be nice if we started, in a popular movement, to reject religion itself. Religious people who have humane thoughts and take compassionate actions can do all that without the nonsense about supernatural beings, miracles, prayers, "faith," and 72 virgins, etc. The world is too awesome and beautiful to infuse it with superstitions from an ignorant and fearful time. When the fifth Supreme Court justice stopped believing in such fairy tales him/herself, we would be much safer from the inherent evils of religion, especially if that were in line with growing trends in a modern, educated world.
19
@AM
So much for the free exercise of religion. Tell your Muslim or Hindu or Buddhist neighbor that their religion is harmful. Or are you just upset with Christians?
1
@Shamrock,
Thanks for the reply. I should note that I am not a government agent. The 1st Amendment addresses government action, including the free exercise, which I consider to be a very important right of the people. Protection of the right in others to religious beliefs should and does help secure my right to believe in none.
In any event, I would never take ANY step to interfere with someone else's exercise of his/her religious rights, except perhaps to the extent of trying calmly to discuss with them the anachronistic, distracting, or mundane aspects of religion (in my opinion, naturally).
Also, given some doctrinal and cultural issues, I think Islam is currently worse than Christianity (by being more intrusive into the lives of non-adherents, in certain respects). Buddhism, of course, tends to be the least intrusive. But none of them have the beauty and grandeur of science and humanism.
2
You can hold a religious view while voting on a law. However, that religious view cannot be the basis of the law, and the law must hold up independently of your religious view.
76
@SXM - I agree with you, but too many people holding religious views believe their religion is absolute and find it difficult to separate "church and state".
1
@SXM
So if you vote against slavery on religious grounds the law is unconstitutional? Ms Greenhouse has confused the readers on constitutional law.
1
@Shamrock
That's exactly the opposite of what SXM said. Voting against slavery on religious grounds *is* constitutional, but writing a law to ban slavery because your god disapproves *would* be unconstitutional. Don't pretend that the only argument against slavery is religious, either. It may surprise you, but atheists *do* have morals.
6
The Establishment Clause has been under attack on many fronts (school boards endorsing mandatory prayer led by football coaches, towns putting up religious displays on public property, etc, ad nauseum) for many decades. The organization Freedom from Religion fights many legal battles against this onslaught. Its tragic that after 225 years these battles have to be continually re-fought and that so many Americans would prefer to live in a theocracy (of THEIR OWN RELIGION of course), and have learned absolutely nothing from thousands of years of religious slaughter.
163
I'm not sure that the the First Amendment prohibits political views based on religion. I disagree with Alabama (even though I grew up there), and am pro-choice, but I cannot say that if your politics are influenced by religion they must be banned.
4
@J Wilson No worry. No one would argue that political views based on religion should be (or could be) prohibited. Lawmakers are free to propose laws based on their personal faith-based convictions; they can't pass laws that establish those convictions as law or part of a law.
5
Ms. Greenhouse’s point is much deeper. It’s not mere influence. Nothing wrong g with that. Re-read the column and some of the case law.
The issue is when the *primary* purpose of the law is religious, whether its *primary* impact favors one religion over another or religion in general over the secular, and whether it is primarily designed to enact as *public* policy, what are clearly religious mandates and values.
6
There is a difference - one can be religious, but that religion cannot and must not be the basis for law. Your religion trumps no one else’s religion - or even lack of faith - laws must be written and enacted with an impartial eye towards faith. This means, all the talk about souls and how personhood is gifted at the moment of conception MUST be wiped from public discourse simply because it has no basis in scientific fact, but rather is simply written in a religious text that SOME Americans subscribe to. And, quite frankly, while some believe these texts to be handed down from God, others, such as myself, feel strongly they are nothing more than parables and well-crafted fairy stories.
2
The Supreme Court can ignore the Establishment Clause the same way that they ignore the phrase “well regulated militia” in the Second Amendment.
495
I expect the stolen Court not only can but will. Roberts won't show his dubious mercy for much longer, and Gorsuch, the kegger, and the other rapist are aching to show how bad Republicans can truly be to actual Americans.
Nor can we expect the developed world to liberate us from that Court, McConnell, Pence, and the loser, nor from their climate, opioid, and tyranny attacks. India just went full-steam reverse and gave modi a second term, even proudly so for some bizarre reason. France is too busy dealing with the anti-gas-tax yellowjackets. Germany's more hateful segments have grown powerful again and won seats. Britain, well...Brexit.
We'll have to storm our own beaches this time.
And that's just the way isolationist nationalists like it.
20
@Edward C Weber
And the same way they ignored "one person one vote".
13
Annulling the constitutional rights of a living mother in order to endow a potential human being with rights requires a rationale and a compelling state interest.
The state's insertion of one distinct group's religious attitudes regarding abortion into secular law governing other religions just shouldn't be happening. The province of Virginia voted by popular referendum as far back as the 1770's to end the established Church of England's legal power to suppress other religions.
Defining existing constitutional law to draw a reasonable compromise based on the trimester system was eminently sensible in 1973. This admittedly unlawful attempt to ban any first trimester abortion is a direct assault on the freedom of religion.
27
And when will we realize that religious beliefs also stand in the way of those with a desire to humanely end an intolerable life due to pain, illness or depression? Another Establishment Clause encroachment on basic human rights.
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@EBB
This is perhaps already worse than you know. As a physician in Vermont a year ago, I was told I could NOT follow Vermont law (and that is who licenses physicians--the state) and work with a patient with two incurable cancers to provide the possibility of physician-assisted death. Why? Because I worked for a Federally Qualified Health Center, and the Assisted Suicide Funding Restriction Act of 1997 prohibits any Federally funded entity from participating in something fully legal under state law.
24
Enough with the histrionics, You seem to be confused about the connection between morality and religion. Atheists like to remind religious types the morality is possible apart from belief in the divine. If that is, in fact, the case, then you need to realize that some people may be against abortion for moral reasons apart from any religious commitment. That they may be both religious and with moral concern . . . Well, are you suggesting this freedom should be dis-established?
3
@jro you seem to think the only moral dilemma is the fetus's life. One cannot expound on moral dilemmas, but then cherry pick the ones that support his/her personal preferences/biases.
7
@jro
So don't have one.
Let others make their own choice.
Simple.
8
And you need to realize that some people believe it is immoral for religious zealots and the government to meddle in other people’s private lives.
12
In god we trust. Our legislators, not so much.
Until money in politics gets a do over, wewill be subject to what the money collectors want, not what is good for the nation.
The anti life anti abortion movement wants repression. It is not good enough that they can exercise their rights not to participate in activities against their religious beliefs, but they insist that every other person worship at their altar as well.
That's unamerican. They may as well be communists or ISIS, commanding obedience and punishing those who remain independent and free.
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@Zeke27
It is ISIS and the Taliban who demand that others follow laws written based upon their religious beliefs. That parallels evangelical Christianity.
I have no problem with Christians following their religious beliefs, until their beliefs harm others. These religious exemptions to our laws do just that.
3
Wasn't the Establishment Clause simply intended to bar Congress from interfering with states that had
" established" churches at that time?
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@NJ Keith
Nope. The constitution (correctly, IMO) specifically stated that there could be no religious tests for public office.
The Founding Fathers did not create a secular government because they disliked religion. Many were believers themselves. Yet they were well aware of the dangers of church-state union. They had studied and even seen first-hand the difficulties that church-state partnerships spawned in Europe. During the American colonial period, alliances between religion and government produced oppression and tyranny on our own shores.
9
"But it’s past time for the rest of us to step back and consider the impact of religion’s current grip on public policy — not only on the right to abortion, but on the availability of insurance coverage for contraception in employer-sponsored health plans and on the right of gay and transgender individuals to obtain medical services without encountering discrimination."
This article is long overdue, and I applaud Linda Greenhouse for writing it. For years, I've been beating the drum of the first amendment on all this religious intrusion into our book of secular laws, appalled at the Christian lawmakers' flagrant disregard for separation of church and state (another catchall phrase that doesn't really capture the fine parts of the "freedom of, and from, religious exercise" in American life).
I was struck by Ms. Greenhouse's example how courts interpreted the case of cross in Maryland--"if you don't like it, don't look at it."
Because it's easy enough to flip that back on lawmakers seeking to impose their faith on all Americans, religious or not: "if you don't like abortion, then don't have one."
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@ChristineMcM I think this article would have been more powerful and on point if it had quoted, analyzed and refuted the actual abortion law enacted by the Alabama legislature.
After all, it is the specific language of this law, not the quote from Alabama mayor Kay Ivey, that the courts (up to and including the Supreme Court) will examine in determining the law's constitutionality.
I am sure US courts will not take into account Irish--or other countries'--precedent in this matter.
12
@ChristineMcM
The religious right began its takeover of the GOP in 1992 at the convention in Houston. Since then, there's been a gradual - but not invisible - move to the establish Biblical scripture as our rule of law in place of the Constitution. With Trump's election, it is out in the open. Their knowledge that at best, Trump will be gone in 2020, so they have only so much time left to turn the nation into that theocracy.
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@Mimi In order to entrench the privilege of the righteous.
2
We are working on the theory of "equal and opposite reactions" on how the Court views religion.
For years, we looked at the First Amendments Establishment clause as a fundamental way to remove religion from public life. School prayer, nativities on public property, whether we could open public meetings with an invocation - these issues were decided on the idea that to foster specific prayer, or specific religious symbols was an establishment of religion.
We supported a rule of freedom FROM religion, which fired up a reactionary force we see today that argues that those actions are actually a violation of freedom OF religion.
The two ideas are a permanent tug-of-war over a vast mud pit. It looks as if the Court is willing to pull us into the mud pit now.
The Court is not all that good at finding the balance - the ability to protect religion while protecting others from it.
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@Cathy
Not sure I agree with this analysis: no one is proposing to remove Religion from ‘public life’ — just exclusive rights to express a particular religious world view in government-associated spaces and policies.
How do we know this? Because an examination of court documents, including the amici curiae submitted by interested parties, show theocratic arguments hiding behind the fig leaf of dubious law. Read the flat-out dishonest claims they make in those documents and you will see: fantastic claims about the powers and authority conferred upon them because of their superstitious belief; fantastic claims about the nature of marriage, which run counter to historical fact and anthropology; fantastic claims about what biology does and does not do while fetuses develop, and fantastic claims regarding the nature of gender variance and propositions that transgender people are not real but an ideology. These documents very plainly reveal the fears and paranoid projections of the religious right, who do not accept the world has moved away from superstition and magical thinking. I recommend reading them, as what they actually say is very different from what the Religious Right say in public.
Freedom from religion is therefore critical and should not be seen in contraposition to the practice of religion; that is not where there is a tug of war. The actual tug of war is whether superstitious religious beliefs entitle believers to harm non-believers.
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@Madeleine
Well said. I wish I could recommend this comment many times.
4
@Cathy
It is my belief that the “Courts” interpretation of “Freedom of Religion” is simply nonsensical more aptly logic turned on it’s head.
How could we demand respect for ones religious dogma while trampling another’s?
Why would she not expect the courts to honor or recognize or rule based on the Establishment Clause? Since when has the Constitution become a suggestion? Isn't it still the original rule of law that made this democracy such an astonishment? Hasn't the Supreme Court been filled with strict constructionists? Isn't that, after all, the basis for all our rights to bear arms?
5
Ms. Greenhouse makes an important point. In my view, if we're not vigilant, we will slowly evolve into a theocracy where all policy decisions are made on a religious basis. We need to prevent this from occurring. The Establishment Clause should mean freedom FROM religion.
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@Bob Gold
Slowly? Sadly, the ship has already sailed, and no one did anything to stop it.
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@Bob Gold
Former senator Joseph Lieberman famously said, "The constitution guarantees freedom OF religion, not freedom FROM religion."
I don't think that interpretation is correct, but the current SCOTUS certainly seems to see it this way.
Don't hold your breath waiting for that to change, either.
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@Bob Gold
"we will slowly evolve into a theocracy..."
Methinks you mean slowly devolve back into a theocracy.
12
Oddly, this piece doesn't focus much on the fact that the court is majority-Catholic, which is a very surprising anomaly in American history. Surely the Irish connection should bring that out too.
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@crispin As a social justice Catholic, this is not surprising at all. Over the past 40 years, the Official Church of the US has spoken with one voice and one attitude. Democrats are lesser Catholics than Republicans.
The conservative justices are demi-gods and the liberal justices are Catholics in name only.
In the view of this GOP/Catholic alliance, Irish Catholics did not overturn an injustice in Irish law- they're just bad Catholics.
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@crispin
Good points Crispin!
American history 101, section on original intent.
How would the founding father have reacted to a supreme court dominated by those most of whom they would have regarded as hated "papists"?
6
@crispin The great Catholic tradition in the US Supreme Court, started by our first Catholic justice, Roger B. Taney - if you recall Dred Scott and the Civil War.