WASHINGTON DC – In 1916, the US president Woodrow Wilson nominated Louis Brandeis to the Supreme Court. He was the first Jewish person ever to reach the bench. He was also the first judge whose nomination was put to confirmation hearings (though Brandeis himself was not present for them), and criticisms of him were rife with anti-Semitism.
“He is a muckraker, an emotionalist for his own purposes, a socialist, prompted by jealousy, a hypocrite… a man of infinite cunning… of great tenacity of purpose, and in my judgement, of much power for evil,” said the former president William Howard Taft. “If it were not that Brandeis is a Jew, and a German Jew, he would never have been appointed,” Senator Henry Cabot Lodge said privately, but Brandeis was nevertheless confirmed.
Like Brandeis, I am Jewish. I’m beginning with Brandeis because I want to make clear that, as a religious minority in the United States, I understand the reluctance to draw attention to the faith of the justices of the Supreme Court. I understand how quickly it can become hateful, how easily it can devolve into stereotypes, and why Supreme Court coverage tends to shy away from examining the religious influences on the decisions rendered. Earlier this week, writing a piece on the leaked draft of a decision that would overturn Roe vs Wade, the 1973 case that guaranteed federal constitutional protections for abortion rights, I hesitated before noting that Samuel Alito, who penned the draft, is one of six Catholics on the court. I considered not writing this piece for the same reason: I respect the justices’ religious beliefs and do not want to criticise anyone for their faith.
But as part of a religious minority in the US, I feel compelled to note that the Supreme Court is blurring church and state, which are meant, under the law, to remain separate in America.
I don’t only mean that many on the religious right advocate against abortion access. Because if that’s true of the motivation of many outside activists, so too is it true of the justices’ own arguments.
For example, in oral arguments for Dobbs vs Jackson Women’s Health Organisation, the case that will likely see Roe overturned, Justice Amy Coney Barrett twice made the point that, because of safe haven laws that allow people to give up their children shortly after birth without penalty, pregnant women can simply give their children up for adoption. This is a concept that goes all the way back to the church in ancient Rome.
As the New Yorker noted in February, the case that safe haven laws give “mothers a way to put child-rearing responsibilities behind them almost instantaneously” was, before arguments, made in a brief filed by Reason for Life, a Christian ministry in California, partially credited to three lawyers from Boyden Gray & Associates, one of whom is reported to be a former student of Barrett’s. The point about safe havens as an alternative to motherhood was in Alito’s decision.
Barrett also, in 2015, signed a letter to Catholic bishops in support of the Church’s teachings on the sanctity of life, and was a member of the anti-abortion Notre Dame Chapter of the University Faculty for Life. Barrett is, of course, entitled to her personal beliefs. But personal beliefs are only irrelevant to judging when they are not clearly visible in the judges’ decisions.
Alito, for his part, said in a town hall at Thomas Aquinas College last November: “There is a real movement to suppress the expression of anything that opposes the secular orthodoxy. If the society doesn’t respect religion, religious liberty becomes imperilled.”
This is misleading. The reason we are supposed to have secular orthodoxy in our public institutions is not because Americans do not respect religion. I am not saying that religion should not be a factor when individuals decide to have an abortion or not. People are well within their rights to allow their decision to be guided by their faith. But part of the reason that church and state are meant to be separate in America is that not everyone follows the same religion. Religious liberty for only one religion is not religious liberty.
Consider, for example, that in certain cases traditional Jewish law actually requires abortion (such as when the life or health of the pregnant person is at stake). A poll has shown that American Jews support abortion rights more than any other religious group in the country. Similarly, there is no clear ban against abortion in Islam.
A country in which abortion is permitted is a country in which religious liberty is respected, and one in which people are free to take their own faith into account when making the decision about whether to have an abortion. This decision, in other words, will clearly be motivated by religion without respecting the religious pluralism of the US. And it does not respect religious minorities to pretend otherwise.