We are told that judicial engagement will not lead to dueling natural rights jurists usurping republican government. But what rights do they see?
Two recent articles in The New York Times highlight a common (mis)understanding concerning the politics of abortion, and in the process reveal much about the state of political disagreement, particularly as it involves the role of the Constitution in public life.
Dwight Garner reviewed the Library of America’s release of the works of Wendell Berry. At nearly 1700 pages, the collection gave Garner a lot to read, so he might be forgiven for writing summarily, although not dismissively. In the limited space he had to deal with Berry’s work, Garner could not resist observing about Berry: “A man of Christian faith, he is opposed to abortion.” One would have to work hard to find evidence in Berry’s work of his Christian faith, and even harder to find evidence of its orthodoxy. A reader doesn’t, however, need to search much to find what Berry has to say about abortion. Pretty much everything Berry has to say about the topic can be found in his essay “Caught in the Middle,” also available in a different form in his recent book Our Only World. In that essay Berry argues there should be no laws against abortion, and in general his essay cannot be said to be a defense of the “pro-life” position. My guess is that Garner read only a small part of Berry’s works, but the gratuitous inclusion of the abortion reference raises the suspicion that writers for The New York Times seem to think it’s the most important issue of the day.
A more thorough, and I suppose more thoughtful, expression occurs in Linda Greenhouse’s recent essay on abortion and the Establishment Clause of the Constitution. Like Garner, Greenhouse believes that objections to abortion ultimately and exclusively arise from religious beliefs. Granted, Greenhouse does provide accompanying evidence indicating that, in some instances, restrictions on abortion were accompanied either by overt religious justifications or implicit religious assumptions, or adorned with religious language. Whether the accompanying policy would be discredited under the Establishment Clause would be, minimally, a matter of debate.
But Greenhouse takes the statutory existence of religious language as prima facie evidence that an Establishment Clause violation has occurred. This is in no small part due to her belief that the Establishment Clause bars any policy initiative that implicates religion, overtly or covertly, at any level of government. A “strict separationist” reading of the Establishment Clause, she believes, is the only thing that keeps America from devolving into a puritanical dystopia. It’s a reading that has been largely discredited, but Greenhouse’s interpretation seems to suggest that government must restrain religion, to the point of purging it completely from national life.
Greenhouse’s epiphany occurred while traveling in Ireland, a country which recently “threw off the shackles of the Catholic Church” by liberalizing its abortion laws. This emancipation enabled Ireland “to claim the secular freedom its people now enjoy,” in contrast to a “disingenuous politics” which will “hurl us backwards to a place many of us never imagined.” While “Ireland marches boldly into the future,” the US becomes increasingly theocratic. At the forefront of this regressive politics stands the Church specifically, and religious belief generally, which represses human autonomy in all its forms. Today our uteruses, tomorrow our minds.
At the center of this narrative stands her conviction that accommodating religious belief always results in an indulgence of religion’s tendency toward coercion. The flash point was the Court’s accommodations in Hobby Lobby, which have metastasized to the point where religion has a “current grip on public policy.” The Court may be counted on to compound their error in Hobby Lobby by refusing to use the Establishment Clause properly in rolling back religious accommodations. Indeed, the Court has now, according to Greenhouse, created a rule “that the Establishment Clause permits any religious favoritism short of actual coercion of non-adherents.”
At the policy level, Greenhouse claims, this will mean that some women will be made “second-class citizens” when their benighted employers don’t provide the women with the “health care benefit” which is a statutory right serving an essential secular purpose. Employers may also refuse to fund insurance policies that cover gender-alteration therapies to transgendered persons, in both instances motivated by antiquated notions of sin.
As with the marriage debate in this country, much of the argument involves money. Policy must determine the distribution of material benefits. Absent is any notion of a public or a common good, or a serious discussion about how insurance plans actually operate in terms of the management of risk pools. Should all persons buying into an insurance plan be required to cover risks they’re not inclined to, whatever the reason? Or pay for services they don’t use? Why would it be the case that only secular persons might be victims of coercion?
The connections to her general reading of the Establishment Clause are obvious. What sorts of broad public accommodations might the Constitution provide for religious groups? Would it allow for the provision of basic public services to religious organizations, even if the taxpayer makes no use of, or has no use for, that organization? Must the Establishment Clause be used in the most restrictive ways possible, to insure the complete absence of religion in public life? Does she honestly believe that a proper reading of the Establishment Clause, either in historical construction or in case law, results in the “high wall” of separation she clearly favors? In any case, the dismissive claim that “God’s will cannot be a constitutional justification for a law that erases an individual right” has little to do with any serious understanding of the Establishment Clause. Neither, for that matter, can the absence of God’s will erase an individual’s right to the free exercise of religion.
Greenhouse’s essay serves as a reminder that the law cannot function when individuals or groups see reality in such radically divergent ways. Commitment to the rule of law requires commitment to Constitutional principles, but under such serious disagreement about those principles the rule of law will devolve into mere coercion. Does Greenhouse seriously believe that America is on the cusp of a theocracy? That religion has a firm grip on public policy in this country? That religious believers are coercing non-believers? That only a tendentious reading of the Establishment Clause can save us from a regressive collapse into rule by religious clerics, or religious fundamentalists?
In one telling passage, Greenhouse refers to a comment made by Una Mallally, a columnist for the Irish Times. Mallally noted that all anti-abortion movements are characterized by “religious fundamentalism, fake news, propaganda and hysteria.” I take this to be an example of the radical divergence of views that I mentioned above, for it seems to me very much the case that Greenhouse is engaging in her own secularist version of all these pathologies. Religious fundamentalism concerning sexual ethics? Check. Fake news about the extent of religion’s political power in America? Check. Propaganda concerning the meaning and history of the Establishment Clause? Check. Hysteria? Check.
What kind of propaganda? To begin with, stating that the Establishment Clause doesn’t justify referring to God’s will to deny rights is a straw man. She gives no indication of understanding the clause’s relationship to state establishments at the time of ratification, nor any sense of its relationship to the Free Exercise Clause. She shows no sensitivity to either the realities of federalism or the generally accommodating view of religion regnant at the founding. Most perniciously, she seems to think that the Establishment Clause requires there be no sanctuary for persons of faith, but rather compels them to obey generally applicable laws of secular justification. Her reading would render free exercise largely meaningless. Perhaps the reason why there is “no chance” the Court will “be receptive to Establishment Clause arguments” is because they are good enough scholars to know that Greenhouse’s arguments have little to do with the Establishment Clause.
Part of the problem, I suspect, is that both sides in the cultural debates like to have their histories and their policies neat and tidy. No reading of the Establishment Clause is going to solve our problems. One side looks at America and concludes that theocratic governance is the biggest problem we face. On the other side, religious believers feel as if they are being routed on virtually every front. Even the Hobby Lobby case can hardly be said to be a rousing defense of religious liberty. One might be tempted to say that no progress can be made until both sides acknowledge that the truth is somewhere in the middle, but that’s unlikely to happen when the two camps have such limited interactions with each other, and people typically won’t defend rights they have no intention of exercising.
Greenhouse believes that any hint of a religious justification for policy is automatically unconstitutional. All policy must have a secular justification. There is no one, to my knowledge, who makes a contrary argument: namely, that all policy must have some sort of religious justification, or even the softer claim that a religious justification is sufficient for making a policy recommendation. While anti-abortion activists may use religious justification for their arguments, their legal arguments have consistently used philosophical and scientific reasoning as their bases. Castigating such reasoning as “religious” is a useful polemic.
But The New York Times, it would seem, has no interest in such nuances. To nearly all of their editors and writers, all objections to abortion are religious objections, all religious beliefs are regressive, and all religious claims tend toward coercion. Coercion only goes one way, however: “You don’t like my view of sexual autonomy? Too bad for you. You’re still going to pay for it.” As Ross Douthat, a dissenting voice at the New York Times, once said, “Say what you really think: that the exercise of our religion threatens all that’s good and decent, and that you’re going to use the levers of power to bend us to your will.”
Now that Ms. Greenhouse no longer covers the Court, we are allowed to see what she really thinks, not only of the Court and the Constitution, but of her fellow citizens as well. And she has made it clear that she has no interest in living in a world where religious accommodation gives sanctuary to bigotry, where anything short of strict separation puts us on the dangerous road to theocracy, and where political actors operate out of deep convictions not in line with her own. It’s hard to see how this ends well.