Mirror of Justice

The Tiresome Claim that Pro-Life Legal Measures Violate the Establishment Clause

Recently Caroline Corbin published an article "Religion Clause Challenges to Early Abortion Bans."  Larry Solum posted a link to the piece on his blog  and on Twitter.  In response, Rick Garnett graciously linked to my article "Abortion, Religion, and the Accusation of Establishment" (here).  Below is my response on Twitter to Corbin's piece, specifically to her claim that laws recognizing conception as the beginning of the life of a human being violate the Establishment Clause.  In the post-Dobbs era one can expect to see abortion proponents more and more frequently claim both a free exercise right to abortion and an establsihment clause limit on abortion restrictions.

The Establishment Clause claim is tiresome. The claim that legislation outlawing abortion is inherently religious and so violates EC is a mere assertion – an oft-repeated assertion, but one that has not gained intellectual substance with repetition.

Corbin’s paper is full of assertion, but not argument. She merely asserts that the Harris v. McRae line of reasoning (i.e. laws which coincide with religious tenets are not unconstitutional) is “not persuasive” (p. 47). She asserts that, unlike laws against theft and murder, there is no “genuine and legitimate secular reason” to outlaw abortion based on the premise that the life of a human being begins at conception.  Hedging her bets, she asserts that “ostensible secular reasons usually collapse back into the religious assumption.”  Of course, if these reasons “usually collapse” into religion but not always, then laws outlawing abortion can be supported by secular reasons. But she leaves this unexplored.

Plainly, her assertions are merely that, not conclusions demonstrated by argument.  Nowhere does she consider the scientific foundation for the premise that the life of a human being begins at conception – a premise located in the basic texts of embryology.  That people may also find support for this in the Bible, well, that’s Harris.

Corbin cites Sherry Colb for the idea that a proposition is “a religious not a scientific belief” if it is supported by religious people and not by “virtually every secular person” (p. 44).  She does not pause to consider the significance of the qualification “virtually.” Moreover, the identity of a person – or the label placed upon them -- does not demonstrate the nature of the idea itself (i.e. religious people hold scientific beliefs, and scientists hold religious beliefs).  This would require an argument based on epistemology that Corbin does not provide.

The 1964 Civil Rights Act would not have passed without the well-organized support of religious leaders including many Black Christian ministers.  Indeed, their very vocal support was explicitly Christian.  But that did not render the law or the idea of non-discrimination “religious” and so constitutionally out-of-bounds.

Corbin  refers to Lemon v. Kurtzman (p. 43) for the idea that to be constitutional a law must have a secular purpose, but then fails to distinguish between a legislator’s motive and the legislation’s purpose.  A legislator may be religiously motivated to vote in favor of a lower speed limit or more immigration or increased spending for public schools, but that does not make the purpose of these legislative acts “religious” in nature. Indeed, a lawmaker may be religiously motivated to vote in favor of laws that support the non-establishment of religion, but that does make the purpose of the legislation “religious.”  Laws against abortion may or may not be supported by a particular legislator’s religious motivation, but laws extending the prohibition against homicide to human beings in the womb are firmly supported by a sound, secular rationale.

 

Fifteen years of the Annual Law and Religion Roundtable

Tempus fugit, and all that. I recently returned from Sabanville -- I mean, Tuscaloosa -- and the Annual Law and Religion Roundtable, which I've been organizing and hosting with Nelson Tebbe (Cornell) and our own Paul Horwitz for fifteen (!) years now.

We got the idea, if I recall correctly, from a workshop-style conference for younger property-law scholars that Ben Barros (now at Stetson) and Nestor Davidson (now at Fordham) put together out in Colorado. Each year -- well, we had to Zoom two of them, and miss one year altogether, because of COVID - we've held our version at a different school -- a "movable feast", as Paul likes to say! -- and exploited the on-site generosity of different colleagues.  Over the years, several hundred scholars -- from a variety of disciplines, at a range of career stages, with a variety of interests and perspectives -- have participated, and we've met from Stanford to Virginia to Toronto to Notre Dame (and a bunch of other places in between).

This tradition (!) has been -- for me, anyway! -- a highlight of the academic year. Notwithstanding disagreements about non-trivial questions, methodological differences, and a diversity of commitments and priors, the conversations have been productive and collegial, and the socializing and fellowship uplifting and encouraging. I've been particularly struck by (among other things) how strongly I've come to prefer the roudtable/workshop-type academic gathering to the panels-and-audience type (which is not to say I don't welcome your invitations to the latter!).

Kilpatrick on Institutional Neutrality and Institutional Fidelity at the University; Bray on the Common Law and the Catholic Intellectual Tradition

Kevin and I have two episodes on our Sub Deo et Lege podcast that might be of interest to readers here.

First, we interviewed Peter Kilpatrick, President of The Catholic University of America, concerning various questions about free speech, free inquiry, and university life and purpose. President Kilpatrick discussed two different models for the university (any university, secular or religious): institutional neutrality and institutional fidelity.

Second, we discussed with Professor Samuel Bray of Notre Dame Law School his recent piece on the role of the Catholic Intellectual Tradition on the common law (which came into full strength in a Protestant era). Among Sam's contributions in his piece, which he mentions in our chat, is that the influence is all the greater to the extent that the Catholic Intellectual Tradition is deemed something like the Christian Intellectual Tradition.

Cathy Kaveny on "Dignitats Infinita"

Over at Commonweal, there is a group of recent pieces about the new document, Dignitas Infinita.  The contribution by Boston College's Cathy Kaveny, "Understanding the Audience", might be of particular interest.  Here is a bit:

Vatican interventions in secular human-rights discourse have generally had two purposes. The first is to rebut those who critique the UN Declaration and the human-rights regime it generated as alien impositions of a Western colonial framework on non-Western cultures. This is a charge sometimes raised by Arab and Asian countries that have very different understandings of the role and rights of women or the nature of acceptable punishment. It is also mounted by African countries that have different understandings of the basic structure of the family, including polygamy.

The Vatican’s second purpose is to resist the interpretation or expansion of universal rights in a purely individualistic or constructivist way—which would, in its view, be an unjustified imposition of certain elements of a Western world-view. In the Vatican’s view, rights are not determined by individual desires, no matter how strong they are. Nor are they designed to protect an individual’s right to construct his or her own identity without reference to objective goods, like the norms of biology, the well-being of other people, or a well-functioning community.