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Abortion and the Establishment Clause in the New York Times

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.

Reader Discussion

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on June 25, 2019 at 09:21:03 am

Outstanding. Truly. This analysis gets to precisely the crux of our current politics. It reduces to a pattern of progressive argument ad hominem which they used to take greater pains to conceal beneath a layer of better and more educated intellectual pretension but which today they hardly see the need for, especially as they are no longer up to it intellectually.

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QET
on June 25, 2019 at 13:00:12 pm

“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.”

No doubt, our Salvational History has revealed, that whenever we have denied our Founding Judeo-Christian Principles which begin with Genesis, and thus the fact that human life is Sacred, because man Has Been Created to live in Loving relationship with one another, in communion with God, civilization has devolved into anarchy, but not by coercion, because no one can coerce another to Love them, Love is a Gift given freely from the heart.

“Let Us Create man in Our Image.” - The Blessed Trinity.

To deny The Sanctity of human life from the moment of our Creation at conception, and the Sanctity of the marital act, which is life-affirming and life-sustaining, and can only be consummated between a man and woman, united in marriage as husband and wife, in order to accomodate acts that because they do not respect the inherent Dignity of Human Life and/or the inherent Dignity of Marriage, are demeaning , is to deny the Sacredness of humankind.

Recognizing the Sacredness of every beloved son or daughter, can never give sanctuary to bigotry, because bigotry arises whenever one denies The Sanctity of human life, not when one affirms The Sanctity of human life.

No reading of the Establishment Clause will necessarily solve the problem of atheistic materialism, or the lukewarmness of those who are “caught in the middle”, This does not change the fact that those of us who recognize that God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost (Filioque), Is The Author Of Love, Of Life, And Of Marriage, cannot be coerced into serving in any capacity that forces us to render onto Caesar, what belongs to God, without violating our Founding Judeo-Christian values, and thus violating our Constitution, “The Government Instituted among men”, for which it stands, to protect, “the separate and equal station to which the Laws Of Nature and of Nature’s God entitle them”, “ among these (certain unalienable Rights), Life, Liberty, and The Pursuit Of Happiness”.

I suppose we can thank God, that our Founding Fathers recognized that our inherent unalienable Rights come from God, and not Caesar, and I suppose that despite the fact that our Founding Fathers recognized this to be a self-evident Truth, there will always be those who desire to render onto Caesar, or themselves, what belongs to God.

The New York Times has no interest in explaining how the son or daughter residing in their mother’s womb cannot be a human person, or how the desire to engage in a demeaning act of any nature can change the nature of the act, because The New York Times, unlike our Founding Fathers, does not believe in the Sacredness of human life, or the Sacredness of marriage.

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Nancy
on June 25, 2019 at 15:17:51 pm

https://www.nytimes.com/2019/05/23/opinion/abortion-supreme-court-religion.html

If I could respond to Ms. Greenhouse here I would State the following:
Ms. Greenhouse, our Founding Fathers, in recognizing God Endowed us with our inherent, unalienable Rights, recognized the purpose of these inherent unalienable Rights would be what God intended. Could you please explain why you believe that our Founding Fathers believed that in order to defend, protect, and secure our inherent unalienable Right to Life, to Liberty, and to The Pursuit Of Happiness, it is necessary to defend, protect, and secure the destruction of beloved sons and daughters residing in their mother’s womb, and defend, protect, and secure the engaging in or affirmation of demeaning sexual acts of any nature, including between a man and woman united in marriage as husband and wife, for the sake of our posterity and our prosperity, in order to “form a more perfect union, establish justice, insure domestic tranquility, provide for the national defense, promote the general welfare, and secure the blessings of Liberty to ourselves and our posterity”?

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Nancy
on June 25, 2019 at 17:26:22 pm

People of Ms. Greenhouse's ilk simply are practicing a different religion, a secular one where the State is God. We're a lot closer to this type of dystopia than we are to a theocracy, that's for certain. Did the Founder's intend the former and not the latter? They supported neither.

I believe the Establishment Clause should be interpreted literally based on what it meant at the time, which was that the government shall not fund any religion with tax dollars - no established churches as existed at the time in a number of states (though the Establishment Clause at the time did not strike these down, as it pertained only to the federal government). Does a decision not to fund abortions constitute the establishment of a particular church or amount to taxpayer funding of one or more? Again, I don't think so, but I'm speaking as a layman and not a lawyer.

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Culper, Jr.
on June 25, 2019 at 21:10:35 pm

Ms. Greenhouse is the most self-unaware leftist on the planet. Does she remember supporting the forcing of a private pharmacy to provide abortifacients, or Catholic Nuns, or Hobby Lobby, or healthcare workers being forced to perform or be involved in abortions??? Who's the REAL theocrat Ms Greenhouse? Another ditzy airhead...

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anony
on June 26, 2019 at 09:40:21 am

A problem arises with anyone discussing the establishment clause and not mentioning James Madison's REMONSTRANCE (1786). Government shall not be involved with religion on any score: That is the meaning of the first words of the First Amendment, Congress shall make no law. Government shall make no law. Anyone believing otherwise is counting angels on the head of a pin. Whether anyone opposes or favors full rights for every fetus are beliefs which come from religion and philosophies, which not everyone must support or believe.

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michael ulin edwards
on June 26, 2019 at 14:52:26 pm

It is sad to realize that our nation is losing the ability to reason. The inability to distinguish between a moral objection and a religious dogma is symptomatic of our intellectual decline.

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Rtcdmc
on June 26, 2019 at 16:56:47 pm

Mr. Edwards, the fact that a human person can only conceive a human person, and thus every son or daughter of a human person can only be, in essence, a human person, is a fact that can be known through both Faith and reason. I am wondering if you believe you were not you from the moment of your conception, who was it that was residing in your mother’s womb?

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Nancy
on June 26, 2019 at 17:12:40 pm

MS. Greenhouse, like so many who invoke the first amendment, especially the establishment clause, seem always or at least often, inclined toward a basic misapprehension of its reason for being. Though it has suffered many well intentioned and even reasonable interpretations, the one most often lost is its most plain.

It restricts Congress from making law. It does not restrict citizens.,or even States for that matter of including or excluding religious or perhaps moral arguments to form part of the basis for any law or regulation. It rather simply says that the Fed needs to stay out of it. That they haven't stayed out, allowing exceptions for religious practices in various industry and employment regulation, is much more a testament to their own inadequate understanding of the Ammenment's Prima Facie meaning than to any mastery of the subject to which they vociferously lay claim.

How magnanimous of Ms. Greenhouse to not allow her ignorance of this plain intent, to stand in the way of her omnipotence in deciding for all of us, the optimal moral approach to voluntary homicide.

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JAMIE HORAN
on June 26, 2019 at 19:15:19 pm

Mr. Edwards interpretation of Madison is empirically false. After the 1st amendment was ratified, they had a national day of prayer. That count as being within any score? Again...there was NO LAW MADE regarding religion(re: the article's paranoia). Theta's the point-laws are force or coercion.

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anony
on June 26, 2019 at 20:29:43 pm

[…] Read Full Article » Source […]

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Image of Abortion and the Establishment Clause in the NYT | Maketinews
Abortion and the Establishment Clause in the NYT | Maketinews
on June 27, 2019 at 09:29:04 am

*******LATE BREAKING NEWS OF THE UTMOST IMPORTANCE*****

https://www.breitbart.com/politics/2019/06/27/transgender-men-have-right-to-abortion-funds-says-julian-castro/

BY ALL MEANS LET US PROVIDE FEDERAL FUNDING FOR ABORTION TO (now Hear this) TRANSGENDER MEN

I wonder what kind of penumbra is required for such a reading of COTUS to permit this latest bit of Progressive Genius?

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gabe
on June 27, 2019 at 17:46:21 pm

I don't speculate what I was before I was born, and able to live outside a womb. Some persons may believe differently - they belief something happened before birth and before they were able to live outside the womb. I have no problem with their beliefs, but don't force those beliefs, those philosophies and any religious beliefs arising therefrom on me. And the Establishment Clause prevents you from do so through the government.

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michael ulin edwards
on June 27, 2019 at 17:58:34 pm

There were a great many practices after the First Amendment was ratified which violated the amendment e.g. the Alien and Sedition Act of 1798, restricting freedom of speech and freedom of the press. A National Day of Prayer back then, hardly establishes precedent on which to base an interpretation of the Establishment Clause today. For instance, the First Amendment did not apply to the States. It only limited the actions of the National Government. Connecticut in 1832 was the last state, to have an Established Religion supported by legislation. The Fourteenth Amendment extended the Bill of Rights to the States. I am unsure what happened in Utah when it became a state but relations between the Mormon Church and the state and federal government changed when Utah entered the Union.
Referring to Madison and the Remonstrance (1786) is to provide an analysis of how to construct a right, freedom and liberty for fetuses. In the Remonstrance Madison set for parameters for the Establishment Clause. Madison demonstrates how to do it. Protecting fetus only from abortion wil not suffice. The right, liberty and freedom must be enlarged and much greater.

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michael ulin edwards
on June 27, 2019 at 19:17:19 pm

There weren't a great many, there were but a few. Yes the COTUS applied to the fed. gov't only, and yet after it's ratification, they had a NATIONAL day of prayer. This demonstrates that merely having speech, expression, or religious activity on gov't property doesn't ESTABLISH national religion. That's why it says Congress shall MAKE NO LAW, which is irrelevant to the issue of abortion. No one's making a law re: religion. Otherwise you'd have to eliminate murder laws because that also happens to be in the Bible.

"Protecting fetus only from abortion wil not suffice. The right, liberty and freedom must be enlarged and much greater."
Oh ok then lol. Any other naked assertions you'd like to make?

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anony
on June 27, 2019 at 19:26:09 pm

"...they belief something happened before birth and before they were able to live outside the womb."
We don't BELIEVE "something happened" we KNOW it lol. DNA is the only thing that separates us from mom, dad, each other, plants, rocks, moneys, etc. Humans don't have rights based on size, location, level of development, intellectual capacity, or their environment.

"but don’t force those beliefs, those philosophies and any religious beliefs arising therefrom on me."
Do you remember the last administration supporting the forcing of a private pharmacy to provide abortifacients, or Catholic Nuns, or Hobby Lobby, or healthcare workers being forced to perform or be involved in abortions? Who's forcing beliefs on who?

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anony
on June 29, 2019 at 05:00:23 am

[…] “Abortion and the Establishment Clause in the New York Times.” Jeff Polet corrects some New York Times authors who believe the “government must restrain religion, to the point of purging it completely from national life.” […]

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Image of Convenience, Abortion, and Friendship | Front Porch Republic
Convenience, Abortion, and Friendship | Front Porch Republic
on July 02, 2019 at 16:40:49 pm

A characteristic of discourse in a theocratic society is the attempt by those on each side of a debate to claim that scriptures are on its side. Thus the Ayatollahs in Iran and the clergy in Saudi Arabia defend their different views by reference to religious texts. In that sense the above discussion about abortion in the US, with constant references to Founding Fathers without engaging with literature in moral philosophy (eg writings of Judith Jarvis Thomson) which is not constrained by who said what amongst the Founding Fathers, smacks of theocratic reasoning. Whether such reasoning is a good thing or a bad thing is a question for a different discussion.

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S P Chakravarty
on July 03, 2019 at 13:23:57 pm

Actually the fact that you have been you from the moment of your conception has been confirmed by Science, and the Establishment Clause does not prevent you from being identified as you from your unique DNA.

https://mirrorofjustice.blogs.com/mirrorofjustice/2019/07/same-old-song.html

https://mirrorofjustice.blogs.com/mirrorofjustice/2019/07/a-bad-moral-argument-about-the-humanity-of-the-unborn-in-support-of-a-good-law-restricting-abortion-.html

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Nancy D.

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