Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, June 24, 2024

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.



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