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highlight a common (mis)understanding concerning the politics of abortion, and in the process reveal much about the state of political disagreement, particularly as it involves the role of the Constitution in public life.
A reader doesn’t, however, need to search much to find what Berry has to say about abortion. In that essay Berry argues there should be no laws against abortion, and in general his essay cannot be said to be a defense of the “pro-life” position.
My guess is that Garner read only a small part of Berry’s works, but the gratuitous inclusion of the abortion reference raises the suspicion that writers for on abortion and the Establishment Clause of the Constitution.
Like Garner, Greenhouse believes that objections to abortion ultimately and exclusively arise from religious beliefs.
Granted, Greenhouse does provide accompanying evidence indicating that, in some instances, restrictions on abortion were accompanied either by overt religious justifications or implicit religious assumptions, or adorned with religious language.
Neither, for that matter, can the Greenhouse’s essay serves as a reminder that the law cannot function when individuals or groups see reality in such radically divergent ways. To begin with, stating that the Establishment Clause doesn’t justify referring to God’s will to deny rights is a straw man.
Commitment to the rule of law requires commitment to Constitutional principles, but under such serious disagreement about those principles the rule of law will devolve into mere coercion. She gives no indication of understanding the clause’s relationship to state establishments at the time of ratification, nor any sense of its relationship to the Free Exercise Clause.That religious believers are coercing non-believers? That only a tendentious reading of the Establishment Clause can save us from a regressive collapse into rule by religious clerics, or religious fundamentalists? Mallally noted that all anti-abortion movements are characterized by “religious fundamentalism, fake news, propaganda and hysteria.” I take this to be an example of the radical divergence of views that I mentioned above, for it seems to me very much the case that Greenhouse is engaging in her own secularist version of all these pathologies. Her reading would render free exercise largely meaningless.Perhaps the reason why there is “no chance” the Court will “be receptive to Establishment Clause arguments” is because they are good enough scholars to know that Greenhouse’s arguments have little to do with the Establishment Clause.At nearly 1700 pages, the collection gave Garner a lot to read, so he might be forgiven for writing summarily, although not dismissively.In the limited space he had to deal with Berry’s work, Garner could not resist observing about Berry: “A man of Christian faith, he is opposed to abortion.” One would have to work hard to find evidence in Berry’s work of his Christian faith, and even harder to find evidence of its orthodoxy.Absent is any notion of a public or a common good, or a serious discussion about how insurance plans actually operate in terms of the management of risk pools.Should all persons buying into an insurance plan be required to cover risks they’re not inclined to, whatever the reason? Why would it be the case that only secular persons might be victims of coercion?Indeed, the Court has now, according to Greenhouse, created a rule “that the Establishment Clause permits any religious favoritism short of actual coercion of non-adherents.”At the policy level, Greenhouse claims, this will mean that some women will be made “second-class citizens” when their benighted employers don’t provide the women with the “health care benefit” which is a statutory right serving an essential secular purpose.Employers may also refuse to fund insurance policies that cover gender-alteration therapies to transgendered persons, in both instances motivated by antiquated notions of sin.One side looks at America and concludes that theocratic governance is the biggest problem we face.On the other side, religious believers feel as if they are being routed on virtually every front.