Opinion | Let’s Not Forget the Establishment Clause

Justice Stevens, alone, disagreed. The preamble was “an unequivocal endorsement of a religious tenet of some but by no means all Christian faiths,” he wrote in his separate opinion. It “serves no identifiable secular purpose,” he continued, adding, “That fact alone compels a conclusion that the statute violates the Establishment Clause.”

Each side attracted supporting briefs from religious organizations, a total of 67 friend-of-the-court briefs in all. In words that are perhaps even more relevant today than they were 30 years ago, Justice Stevens explained: “Bolstering my conclusion that the preamble violates the First Amendment is the fact that the intensely divisive character of much of the national debate over the abortion issue reflects the deeply held religious convictions of many participants in the debate.” He concluded, “the Missouri legislature may not inject its endorsement of a particular religious tradition into this debate.”

There was once a robust Establishment Clause conversation surrounding restrictions on abortion. In 1976, just three years after the Supreme Court decided Roe v. Wade, Congress enacted the Hyde Amendment, cutting off abortion coverage for poor women under the Medicaid program. The legislative debate was replete with references to the “immortal soul” of a fetus and even to Herod’s “slaughter of the innocents.” A representative of the United States Catholic Conference was highly visible as an adviser to the members of the House of Representatives who were negotiating with senators on the amendment’s final form. The lawsuit that abortion-rights groups filed immediately after the law’s passage prominently included the Establishment Clause in contending that the amendment was unconstitutional. But the Establishment Clause argument never got traction, either with the federal district judge who declared the Hyde Amendment unconstitutional or with the Supreme Court, which reversed that decision and upheld the amendment in 1980.

The court will face another Establishment Clause test, which it will predictably fail, in a year or so when it confronts the Trump administration’s Religious Exemption Rule. This rule grants employers who have religious objections to birth control an opt-out from the Affordable Care Act’s mandate to cover contraception in the employee health plan. The rule represents a metastasis from the Supreme Court’s Hobby Lobby decision in 2014, which granted an exemption on the understanding that female employees would get their birth-control coverage directly from the employer’s insurance carrier. But the Trump rule offers no such workaround. Women with the misfortune to work for anti-contraception employers will become second-class citizens, their statutory right to full health care benefits sacrificed to protect the boss from complicity in the sin of birth control.

Two Federal District Courts have issued injunctions to bar the rule from taking effect, based on faulty administrative procedure rather than on constitutional grounds. The cases are now at the Court of Appeals level. In the United States Court of Appeals for the Third Circuit, 14 leading scholars of the Constitution’s religion clauses have filed a brief arguing that the rule manifests unconstitutional “religious favoritism,” an “unyielding preference for religious interests over any conceivable secular interest,” while shifting “serious burdens to third parties.”

This month, the administration issued an expanded “conscience rule” to permit health care workers, down to the level of receptionist, to opt out of involvement with procedures to which they have moral or religious objections. Another new rule to be issued shortly would limit protections for transgender patients seeking even ordinary health care by expanding opt-outs for providers who have religious objections to treating them. These new measures, carrying out the president’s pledge to serve the interests of his allies on the religious right, will undoubtedly be the subject of lawsuits.

As I said earlier, I’m a realist. There is no chance the Supreme Court will be receptive to Establishment Clause arguments. That’s all the more reason not to lose the Establishment Clause from our working civic vocabulary.

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