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Linda Greenhouse: Let’s not forget the Establishment Clause

This article first appeared in the New York Times and is reprinted with permission.

By Linda Greenhouse


Linda Greenhouse
Image provided by Shutterstock

happened to be in Dublin in May when the Alabama Legislature voted to ban abortions. Foreign travel tends to enhance a person’s perception of what’s happening back home, and that was certainly true for me on this trip.

It’s almost exactly a year since Irish voters, by an overwhelming two-thirds majority, threw off the shackles of the Roman Catholic Church and repealed the country’s constitutional provision banning abortion. On May 26, voters defied the bishops again and repealed the provision that requires at least four years of living apart before a couple can apply for a divorce. (Ireland legalized same-sex marriage by popular vote back in 2015.)

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.”

People in Ireland, so many of whom have relatives in the United States, are watching closely. Una Mullally, a prominent columnist for The Irish Times, reflecting on a recent trip to New York for a conference on reproductive rights, had this to say in a column recently: “So much of what we see with anti-abortion movements — in which religious fundamentalism, fake news, propaganda and hysteria are embedded — comes from the American playbook, so it behooves us to keep a close eye on what’s happening in the U.S. right now.”

Becoming a theocracy

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. (Abortion, by the way, was legal at the nation’s founding, and for much of a century afterward.)

But I do know something about the United States Constitution. 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 realistic about this. I’m not expecting judges to embrace the Establishment Clause as the basis for invalidating the Alabama Human Life Protection Act, and I’m not expecting even progressive politicians to call out the religious basis for the wave of anti-abortion laws, of which Alabama’s is the most extreme. 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.

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.

Webster case relevant

Thirty years ago, in a case called Webster v. Reproductive Health Services, the court considered a Missouri law that placed several restrictions on access to abortion. 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.” Was such language constitutional? That was one question in the case, but Chief Justice William Rehnquist’s opinion for the court ducked it. The preamble stated an “abstract proposition” that “does not by its terms regulate abortion,” the chief justice wrote. “We therefore need not pass on the constitutionality of the act’s preamble.”

Stevens, alone, disagreed. The preamble was “an unequivocal endorsement of a religious tenet of some but by no means all Christian faiths,” he wrote in his separate opinion. It “serves no identifiable secular purpose,” he continued, adding, “That fact alone compels a conclusion that the statute violates the Establishment Clause.”

Each side attracted supporting briefs from religious organizations, a total of 67 friend-of-the-court briefs in all. In words that are perhaps even more relevant today than they were 30 years ago, Stevens explained: “Bolstering my conclusion that the preamble violates the First Amendment is the fact that the intensely divisive character of much of the national debate over the abortion issue reflects the deeply held religious convictions of many participants in the debate.” He concluded, “The Missouri Legislature may not inject its endorsement of a particular religious tradition into this debate.”

There was once a robust Establishment Clause conversation surrounding restrictions on abortion. In 1976, just three years after the Supreme Court decided Roe v. Wade, Congress enacted the Hyde Amendment, cutting off abortion coverage for poor women under the Medicaid program. The legislative debate was replete with references to the “immortal soul” of a fetus and even to Herod’s “slaughter of the innocents.” A representative of the United States Catholic Conference was highly visible as an adviser to the members of the House of Representatives who were negotiating with senators on the amendment’s final form. The lawsuit that abortion rights groups filed immediately after the law’s passage prominently included the Establishment Clause in contending that the amendment was unconstitutional. But that argument never got traction, either with the federal district judge who declared the Hyde Amendment unconstitutional or with the Supreme Court, which reversed that decision and upheld the amendment in 1980.

The court will face another Establishment Clause test, which it will predictably fail, in a year or so when it confronts the Trump administration’s Religious Exemption Rule. This rule grants employers who have religious objections to birth control an opt-out from the Affordable Care Act’s mandate to cover contraception in the employee health plan. The rule represents a metastasis from the Supreme Court’s Hobby Lobby decision in 2014, which granted an exemption on the understanding that female employees would get their birth control coverage directly from the employer’s insurance carrier. But the Trump rule offers no such workaround. Women with the misfortune to work for anti-contraception employers will become second-class citizens, their statutory right to full health care benefits sacrificed to protect the boss from complicity in the sin of birth control.

Two federal district courts have issued injunctions to bar the rule from taking effect, based on faulty administrative procedure rather than on constitutional grounds. The cases are now at the court of appeals level. In the United States Court of Appeals for the Third Circuit, 14 leading scholars of the Constitution’s religion clauses have filed a brief arguing that the rule manifests unconstitutional “religious favoritism,” an “unyielding preference for religious interests over any conceivable secular interest,” while shifting “serious burdens to third parties.”

More lawsuits to come

In May, the administration issued an expanded “conscience rule” to permit health care workers, down to the level of receptionist, to opt out of involvement with procedures to which they have moral or religious objections. Another new rule to be issued shortly would limit protections for transgender patients seeking even ordinary health care by expanding opt-outs for providers who have religious objections to treating them. These new measures, carrying out the president’s pledge to serve the interests of his allies on the Religious Right, will undoubtedly be the subject of lawsuits.

As I said earlier, I’m a realist. There is no chance the Supreme Court will be receptive to Establishment Clause arguments. That’s all the more reason not to lose the Establishment Clause from our working civic vocabulary.

Indeed, before the end of the current term, we will have a better idea of whether there’s anything left of the Establishment Clause when the court decides the pending case on the constitutionality of a 40-foot cross on public land in Maryland. [FFRF filed a friend of the court brief in the case.] 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. You don’t like the public display of sectarian symbols? No problem — no one’s making you look at them.

It took Ireland many years and much pain to claim the secular freedom its people now enjoy. It’s taking us just a few years of disingenuous politics to hurl us backward to a place many of us never imagined.

Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes about the Supreme Court and the law. She reported on the Supreme Court for The New York Times from 1978 to 2008, and is the author of several books.

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