New York Times Supreme Court reporter Linda Greenhouse recently wrote an op-ed in which she argues that recent anti-abortion laws are unconstitutional. According to her, they violate the Constitution’s First Amendment, which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
This clause, she argues, is violated any time legislators appear to consider the opinions of a religious person, or cite their belief in G-d to explain their vote.
To judge the merits of her claim, let’s examine the Supreme Court’s interpretation of the First Amendment. In 1973, in Lemon v. Kurtzman, the Supreme Court established (pardon the pun) a three-prong test for determining whether a law “establishes” a religion. It does so, it stated, if it 1) lacks a secular purpose; 2) has the primary effect of advancing religion; or 3) results in excessive entanglement between the government and religion.
Let’s apply this test to a law restricting abortion. Does it lack a secular purpose? Of course not. There is nothing necessarily religious about protecting the lives of unborn children.
Does it have the primary effect of advancing religion? Hardly. Its primary effect is to prevent people from having abortions.
It’s true that many leaders of the pro-life movement are Christian, but other religions have also taught that life in the womb should be protected. For example, some of the oldest anti-abortion texts we have come from Jewish writers like Philo and Josephus, and Tacitus, a Roman consul and historian (56-120), describes Jewish opposition to abortion and infanticide in his day despite its prevalence in the surrounding Greco-Roman society.
Do abortion laws create excessive entanglement between government and religion? Again, the answer is no. According to Supreme Court precedent, excessive entanglement exists only when the government becomes so involved in the operation of a religious entity that it appears to be regularly monitoring it.
Now suppose that when signing an anti-abortion bill into law, a state governor announces (as some more or less have), “I am so honored to sign this bill, which promotes a society in which every human life is valuable and treated by the law as a gift from G-d”? What then? Abortion advocates would argue that this statement demonstrates a religious purpose.
But, again, religious motivations are acceptable so long as a secular purpose – e.g., saving lives – exists as well. The primary effect of these laws is preventing abortions, not promoting religion.
Yes, religious leaders in this country attempt to lobby legislators to vote for abortion restrictions, but these leaders do not decide what the law is; legislators do. This state of affairs differs sharply from that of Islamic countries where Muslim leaders do have the power to reject laws that do not comply with Shari’a law.
Here in the U.S., religious voices can only persuade. A view triumphs when a majority votes it into law, regardless of the motive behind it. A law does not violate the Establishment Clause simply because it advances morality supported by religious arguments. Instead, it reflects the success of American representative government, in which political debate is encouraged, and all viewpoints – including religious ones – are welcome at the debate table.