I could say, “I told you so,” but instead I’m going to lay out the reality leading to the Supreme Court draft overruling of Roe v. Wade in Dobbs v. Jackson Women’s Health Organization so that everyone can understand the long-term drive to erase longstanding civil rights and to replace them with the religious dogma of the right. This is a well-financed, well-organized war that I first saw in action when I clerked for Justice Sandra Day O’Connor during the 1989 Term and when I won the 1997 Boerne v. Flores US Supreme Court decision invalidating the Religious Freedom Restoration Act and then again when I stood up for clergy sex abuse victims. What I saw was alarming.
In this column, I will explain the three theocratic battle fronts, because most Americans—including many scholars and judges—are failing to see the forest for the trees.
When a government is based on religious belief, it’s called a “theocracy,” which means “government by God.” Right now, we are faced with the success of a coordinated push by a minority for decades to construct government by the God of religious conservatives. Their God does not approve of abortion, contraception, or LGBTQ rights.
They label anyone opposed to them as “secular,” meaning they are the true believers, while every other American is godless, when in fact the vast majority of Americans are spiritual and/or religious, and in disagreement with them. This has been a highly organized stealth campaign led by some evangelicals and Catholic clergy and their lobbyists, plus the Federalist Society, the Alliance Defending Freedom (formerly the Alliance Defense Fund), the Becket Fund, and the Pacific Justice Institute, to name a few. They have three goals: (1) remove privacy rights from the Constitution; (2) construct a legal system where the religious are a privileged class not accountable to the rule of law; and (3) dismantle the separation of church and state so that they can obtain more taxpayer dollars and force their prayers into every arena whether public schools, sports, or city council.
The bottom line is they seek one thing for their God: political power to impose their faith on the country. They are currently winning numerous battles, and will win the war if the rest of the country doesn’t protest by voice and vote. They can’t win the war if the rest of the American public stands up for their constitutional and civil rights.
When lawmakers and those in this space are asked why they support eliminating abortion, they typically say, as though it is a fact that “life begins at conception.” That is a belief, not a fact. Many Americans disagree with their belief, as discussed here. The answer also begs the question. Such a belief by itself does not necessarily entail a total ban on abortion or making fetuses a privileged class whose rights eclipse pregnant girls and women. They aren’t just arguing about when life begins, but also investing fetuses with a divine right to subjugate the girls and women who carry them.
The conservative religious minority has succeeded in getting like-minded Justices onto the Supreme Court, and now they have a majority poised to reject Roe because they assert that it is based on shaky constitutional footing. That, of course, is ridiculous as a constitutional matter; Roe has been the law of the land since 1973. The controversy around it was ginned up by this group and is simply the constitutional scaffolding constructed by believers to excise the privacy rights that currently guarantee Americans rights to contraception, abortion, and LGBTQ rights. How do we know that the majority is being driven by religious belief? Because Justice Alito’s draft uses the phrase “fetal life.” As I say above, that is a theological postulate, not a legal term.
These religiously-motivated Justices are the capstone to this conservative religious movement. Their constitutional theory was concocted by the opponents of abortion, contraception, and LGBTQ rights to use their religious beliefs to suppress the civil rights of others. The Justices, assuming they do what Justice Alito’s draft opinion portends, are using their God to revise constitutional rights for all.
The Three Battlefronts to Insert the Theocracy of a Minority into the Constitution and the Law and to Force Taxpayers to Pay for It
First, the marquee battlefield has been the fight against abortion. As explained here, there was a time when even Baptists did not oppose abortion in all circumstances. The movement has hardened over time to land on the much more radical conclusion that at conception, a “life” is created with rights that prevail over a pregnant woman or girl. This is not the world or religious view of a majority of Americans, but it is the abortion rhetoric that has evolved since Roe v. Wade was decided in 1973. Now we have a Supreme Court walking down that line, quite comfortable with states banning abortion in all circumstances, as I discussed here.
The pure believers now, which constitute a mere 7% of the country, reject exceptions for any reason—not rape, or incest, or health of the mother, or the mother’s very life. This fringe’s lobbying is the reason for the “personhood” constitutional amendments and laws in some states that give fetuses rights that can be wielded against the girl or woman or healthcare provider once Roe is eviscerated. Abortion is already heavily regulated in many states, but overturning Roe means lawmakers beholden to this religious minority will have carte blanche to permit no exceptions whatsoever—despite what their constituents actually want.
That means forcing women and girls to carry pregnancies to full term even if the fetus cannot survive and even if the pregnancy threatens their health or kills them. It also means forcing girls to carry pregnancies inflicted on them through incest and child marriage. I discuss the threats to girls of these curtailed abortion laws here. This theocratic movement has reached the deadly end of the logic of its beliefs: states can ban abortion to protect a fetus—viable or not—even when pregnant girls and women will die as a result.
The Mississippi law that is the basis of the Court’s ultimate decision to overrule Roe is an excellent, if disturbing, example of what the future can hold. It does have an exception for rape and for the life of the mother. Yet, there is nothing about incest or the health of the girl or woman. Plus, the governor of Mississippi has not ruled out a no-exceptions ban (or a contraception ban). The sheer cruelty of such laws is built on a singular religious belief about when life begins. It is a belief in conflict with many other religions’ beliefs, as discussed above.
This emerging religious world view should worry all citizens–even those who live in this religious bubble. For one thing, no abortion means more dead or disabled women and girls post-pregnancy, as I discussed above. It also means more children, period. So what happens to pregnancies after the mother’s body is forced to carry them to term against her beliefs? This movement has an answer for that! As Justice Amy Coney Barrett stated during the questioning in the case, why worry about banning abortion and forced pregnancies when there are “safe haven” laws (which let you drop off a baby, no questions asked)? That’s right, the state can force the woman or girl to carry a fetus to term and then they can just drop the baby off somewhere. This is straight out of science fiction, and brought to you by a coalition of groups who are shamelessly operating to make the Constitution theirs, while they call the majority that opposes them “radical leftists.”
What happens when Roe is overturned by this minority of believers: a religious belief about when life begins becomes embedded in the Constitution. Civil rights are dissected out of the Constitution, the American majority is marginalized, and the movement to control America’s culture is emboldened to continue cutting back on ever more constitutional rights. Think about it: this movement also has falsely claimed that some contraceptives are “abortifacients” when science proves they are not. Fully expect to see a list of such contraceptives outlawed under an abortion ban. Also prepare yourself for their arguments that banning abortion encompasses banning voluntary sterilization. Since the draft would eliminate Roe by dismantling all privacy rights constitutional doctrine, it also removes the jurisprudential scaffolding from under contraception and LGBTQ rights. Their religious world view encompasses significantly more than just abortion.
In an ideal world under this religious horizon, the states control abortion and contraception, without having to consider rights of the pregnant girl or woman. They also diminish the lives, love, and happiness of LGBTQ. Their dream is for a fetus to be a “person” bearing rights that control the woman or girl carrying it, for contraception to be curtailed if not unattainable, and for LGBTQ individuals to be celibate and single. Women go back to child-rearing like they want them to, and girls become vessels of the fetuses conceived of rape and incest. If you have any doubt that this movement is motivated by misogyny, review Alito’s draft and historical hero, discussed here. Society loses out on women’s full contributions because they are controlled by their biology, and LGBTQ families and individuals are forced to live under this theocratic world view. All of this is provably bad for human beings, the economy, and the country, and this movement needs to own up to the necessary cruelty that follows from their imposition of their theology on everyone else.
Second, the same conservative organizations scheming to roll back constitutional privacy rights have also been the primary proponents for a standard of religious liberty that makes them a privileged class uncontrolled by the rule of law. The second battlefront in this war brought to you by the organizations mentioned earlier and by law professors like Michael McConnell and Douglas Laycock, involves a demand by the religious to have the right to rise above the rule of law. They say they believe that every aspect of their lives is immersed in God and, therefore, no law should burden their religious practice or conduct. Their interpretation of religious liberty permits their believers to act without consequences, no matter who they harm. Their theory of extreme religious liberty, which I dissect in my book, God vs. the Gavel: The Perils of Extreme Religious Liberty, is socially toxic.
This crew fought to have rights above the law for decades, and the Supreme Court repeatedly rejected their proposed test, most recently in 1990 when Justice Antonin Scalia wrote Employment Div. v. Smith. Their failure to persuade the Court led them to pressure Congress to cancel this First Amendment decision.
Do you see the similarity between their battle to erase privacy rights and to obtain extreme religious liberty? In both circumstances, they are the ones who determine who is privileged above the rest of us: each fetus and their fellow believers. They are the ones who judge; or, perhaps they would say that their God judges. Their constant judging of all—not just their own co-believers in their own space—has contributed mightily to the divisiveness we now suffer. They actually remind me of the Puritans, who judged and even executed those who did not follow their religious path. At base, this is all about power and forcing all Americans into their mold.
Historically, the Supreme Court has weighed potential harm to others against claims to religious liberty. Not this group. They managed to get Congress to pass the intentionally misleadingly entitled Religious Freedom Restoration Act in 1993 and, after it was held unconstitutional for three different reasons (federalism, Marbury v. Madison, and Article V) in City of Boerne v. Flores, again in 2000. In 2000, the Democrats blinked when they should have stood up for the civil rights I warned would be undermined by RFRA. It’s not just Republicans who have paved this path to theocracy.
RFRA restores nothing that was already law, except in the fever dreams of this movement, and divides our society by giving religious claimants’ rights to overcome the law without any consideration of who they will harm. They righteously demand that no one should even speak of the harm they cause, because they are religious and everyone else is a secularist. This is the statute that has been repeatedly invoked for members of the military who refuse to be vaccinated against COVID-19. This “pro-life” movement is courting death in more than one scenario.
This religious liberty formulation is being used to justify intentional discrimination against LGBTQ individuals and families in every sphere of their lives, whether it is the marketplace, foster care and adoption, employment, or marriage. The message is that they have a monopoly on marriage, which their God says is between a man and a woman, and their religious superiority gives them the right to judge LGBTQ and push them out of society to the margins. The constitutional right to religious liberty has never meant believers have the power to judge, condemn, and reject those outside the faith. A theocracy means just that.
They also see themselves as righteously fighting to curtail women’s access to contraception. In Burwell v. Hobby Lobby they justified a right through RFRA for the owner of a for-profit company to arbitrarily edit the women’s healthcare benefits according to their beliefs. He objected to contraceptives he claimed were abortifacients that in fact were not. This is religious liberty today, and it’s due to the adolescent attitude toward religion that it is taboo to criticize religion. A measure of blame also rests on the lawmakers who have deferred to religion for fear of violating the taboo against telling the truth about religion. The Framers, however, established a system where representatives are to be beholden to all their constituents, not a religious subset.
At the same time that they have backed the federal and state RFRAs to let believers ignore the law, they have also ushered into the doctrine the catchphrase, “church autonomy.” This ridiculous saying was coined by Laycock, and has been wielded repeatedly by religions fighting lawsuits based on their negligent failure to protect children from serial child predators. Pay attention to this phrase, “church autonomy.” This is more evidence of their intent to institute a theocracy, where religion dictates the law and forever stands above it. It is literally dangerous to the peace, public safety, and health of this country.
I am a believer who believes it is my duty to tell the truth about religion. I’m certain that this belief is a majority view. Members of Congress are so terrified of religions that they have studiously ignored the Catholic Church and the Baptist Convention and so many other faiths that have permitted long-term, devastating sexual abuse of children and adults. Ever heard a President, Senator, or Representative talk about the scourge of “clergy sex abuse”? That’s the crux of the problem here—no one at the highest levels of our government is acting to check religious overreaching simply because it’s religion.
Third, this same contingent has been battling to end the separation of church and state by arguing that religious entities must be treated “equally” with any others receiving government dollars. That’s right—they are demanding privileges above the law (see above) at the very same time that they are arguing for an “equal” right to receive government dollars to open taxpayer floodgates into their schools and churches. The Court majority that is prepared to overrule Roe and that has given oxygen to those who refuse vaccines during a deadly pandemic, is also fully rejecting James Madison’s strong warning in his Memorial and Remonstrance that “not one penny” of taxpayers’ dollars should go toward religious education. They have systematically broken down the barriers to government funding of religious education to the point that this very Term they could hold that government funding must flow to both public and religious entities. They are playing both sides of the discrimination coin, as I discussed here.
What Needs to Be Done Now
To clergy who serve the majority of Americans who support rights to abortion, contraception, and LGBTQ rights and who oppose the needless deaths of girls and women: Please speak more loudly and speak as a united front. Where have you been while a minority of believers has been orchestrating the end of core civil rights of your parishioners? What are you saying publicly while this movement rolls forward?
To every past and present President, federal and state lawmaker, governor, and elected official: It’s time to end this dangerous deference to religion. American voters now see what is being foisted upon them. If you are imposing your religious beliefs on your constituents, think about that. They don’t all share your faith, and they have a sacred constitutional right to believe whatever they choose. Why are you making decisions based on your particular faith or a religion in your district? You’re supposed to be representing those who don’t attend your church or synagogue just as much as those who do. This religious preference you may be exercising is a violation of the constitutional design. The Framers crafted the Constitution to serve the American people, not a political religious minority. It forbids a religious test oath for elected representatives. Why? Because the Framers understood the tyranny that follows from the union of religious and governing power. So should you.
If you are giving a free pass to religious lobbyists, because they are religious, think about that. Start questioning religious lobbyists like you should be questioning all others. The public good is your charge, not a minority’s dogma.
To the majority of Americans, who are losing this civil rights battle brought to you by a minority of religious believers: Time to wake up and dig in. There is a war, but it is far from over. They may have won this battle, but you hold the power to win the war.
Your weapons are your constitutional rights to express your views and to vote. Rally, call, and write emails to state and federal senators and representatives, and make sure the powers-that-be in this country hear your voices over the religious lobbyists on center stage now. Register to vote if you haven’t. Go to the polls and vote for those who support your civil rights.
When they call you “secularists,” “leftist radicals,” and “left-wing nuts,” simply laugh. These attempts to brand the majority who reject their views are juvenile.
Stop deferring to the right-wing religious actors in this space as though they have inherent rights to determine the Constitution and the law. They don’t, unless we let them create the theocracy they crave.