The Dubious Argument that the Establishment Clause Bars Pro-Life Laws

by Jessica Bell

I’ll admit it: I read comments on online news stories. I like to get a sense of the opinions of laypeople who are motivated enough about a topic (or have enough free time) to weigh in. I have found that whenever the topic of abortion arises, invariably someone raises the argument that anti-abortion laws ought to be barred by the separation of church and state. It has even been articulated by former Supreme Court Justice Stevens in his dissenting opinion in Webster v. Reproductive Health Services (1989).

Even a cursory examination of what our Constitution actually provides will show that this argument has no merit; it is out of line with the meaning and intent of the First Amendment, both as historically understood and as interpreted by the U.S. Supreme Court.  Furthermore, the argument would create bad policy by misunderstanding the inseparable nature of religious convictions from conscience, leaving absurd implications for the appropriate relationship between law and religious values. At best, the argument distracts from the real issues of when human life starts and which human lives ought to be protected; more insidiously, it seeks to strip citizens with religious convictions of the right to participate in their own self-governance.

Historical Context

A person of faith cannot separate his framework of right and wrong from his civic participation, nor does our Constitution require it. The First Amendment provides, in relevant part, “Congress shall make no law respecting an establishment of religion ….” The argument that church-state separation (a term itself not in the Constitution) ought to keep citizens or elected representatives from voting based on their consciences is based on a false understanding of this amendment.

The historical context of this provision alone demonstrates that respect for religion and accommodation thereof was not prohibited but rather mandated by the Bill of Rights. Instead, institutional favoritism of one sect over another was what this provision, known as the Establishment Clause, forbade. This is made clear by the fact that Establishment Clause as ratified is in the same sentence as the Free Exercise Clause, which proscribes Congress from making any law “prohibiting the free exercise [of religion].”

The intent of the Establishment Clause as part of a Constitutional framework accommodating religion is further illuminated in that in the early days of our Republic, Congress provided for the appointment of Congressional and military chaplains, and invited nonsectarian prayers to open sessions of Congress. The Framers never sought to limit the influence of faith on political participation: James Madison, known as the “Father of the Constitution,” who had a key role in developing the First Amendment, acknowledged that the duty to observe one’s religion is “precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” In other words, the Framers understood that the right to act out one’s religion is not a new right conferred by the Constitution, but a preexisting right recognized by it

Modern Interpretation

Likewise, the Clause as interpreted by the Supreme Court has nothing to do with keeping people of faith from voting their conscience. The test to determine whether a law violates the Establishment Clause, first iterated in the landmark 1971 case of Lemon v. Kurtzman, is still used by courts today with only minor refinements. It asks 1) whether the challenged law has a legitimate secular purpose, 2) whether the law’s primary effect is to advance or inhibit religion, or to convey a message that a particular religion is favored or preferred, and 3) whether the law creates excessive entanglement of government with religion. As long as the challenged law does not contravene any of these requirements, it is irrelevant whether a religious argument in favor of such a law can also be made.

An attack on anti-abortion laws as originating from a religious point of view fails on all three prongs.

First, simply put, anti-abortion laws have the secular purpose of protecting life from intentional harm, which is a central role of government. Some seem to believe that the prohibition of abortion is a scheme to roll back the sexual revolution and enforce Puritanical standards of chastity. But even if that is true, it is not relevant to our analysis. Yes, such restrictions enforce a moral point of view, but no more so than laws that prohibit murder or assault; similarly, these restrictions clearly do have the legitimate purpose of protecting the lives that the vast majority of Americans believe deserve some degree of protection.

Second, laws regulating or banning abortion would advance neither religion in general nor any specific religion. For all the rage and rhetoric infusing the abortion debate today, I have never heard it said that widespread abortion restrictions would force women to worship gods unknown to them or pay for others to do the same. The illegality of taking pre-born human life would not stigmatize nonbelievers or grant special privileges to members of any religious group; it would simply extend the protections of a preexisting basic human norm.

Third, anti-abortion laws would not create excessive entanglement of government with religion. The type of entanglement contemplated in this test is a provision that requires pervasive monitoring of religious activities by public authorities, or requires a governmental entity to intrude into matters of doctrine. No anti-abortion law with evenhanded application could fail this test.

The Argument’s Absurd Implications

The Constitutional ban on laws “respecting an establishment of religion” does not strip religious people of the right to participate wholly in their representative government. To assert otherwise would be to invalidate the many good laws that have originated in the moral convictions of people of faith, but also serve legitimate secular purposes of protecting the rights to life, liberty, and property. The great slavery abolitionists such as Frederick Douglass and William Wilberforce were driven by their faith, but the assertion that no man can own another is not merely a private doctrinal matter. Likewise, both Islamic and Judaic law have long held concepts of enforced debt forgiveness, but we do not deny our society the benefits of bankruptcy law simply because it has religious origins or might be favored by religious people. We don’t condone murder and theft simply because to prohibit them would be to enact parts of the Ten Commandments. These protections, no matter their bases, are good for society. The fact that religious arguments can be made for them does not negate the fact that they serve an independent secular purpose having nothing to do with the establishment of any kind of religion.

Almost every belief system in the world prohibits the taking of innocent human life; this is not specific to Christian Americans. The crux of the issue is the question of which innocent human life is worth protecting. It is impossible for a system that protects some innocent human life to do so without answering that crucial question. We answer that question differently across the country and across the globe according to anthropological norms, some of which are cultural, societal, religious, scientific, or some combination thereof. To subtract one’s vote from the equation on this important legal issue, simply because it coincides with the values of his or her religion, is to deny that person’s freedoms of religion and self-government.

In Sum

No one should seek to exclude the proponents of legal protection for the unborn from the debate merely because they are informed by a religious worldview. If it is true, as the Supreme Court enigmatically declared in the 1992 abortion restriction case Planned Parenthood v. Casey, that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,“ then it certainly would curtail liberty to discount the civic participation of religious individuals because they seek to protect the life they and their religion have thus defined.

 

Jessica Bell is a Blackstone Fellow in civil litigation practice in Los Angeles. She focused on constitutional law and alternative dispute resolution at Pepperdine University School of Law, where she graduated with honors in 2008.  She majored in political studies at The Master’s College, where she graduated magna cum laude in 2005.

2 Comments

  1. Wendy Fremin says:

    This article is thoughtfully and articulately written. Thank you for sharing this.

  2. Try applying this reasoning to a law barring the teaching of evolution in public school, or giving equal time to creation science. Laws seeking to advance a purely religious view fail the Lemon test. Likewise, a law banning abortion outright because of a belief that life begins at conception advances the sectarian religious belief to that effect. Laws must pass all three prongs of the Lemon test. Laws banning abortion do not make it past the first because they advance the religious view of when life begins.

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