Opinion | God Has No Place in Supreme Court Opinions

The Supreme Court has come in for plenty of well-deserved criticism for last week’s midnight maneuver allowing Texas to enforce its new abortion law. The fact that the four of the court’s six Roman Catholic justices and a fifth who was raised Catholic but is now Episcopalian, all conservative, allowed a blatantly unconstitutional law to remain in place pending appeal has barely been noted publicly. (Chief Justice John Roberts and Justice Sonia Sotomayor, who are also Catholic, joined with two other justices in dissent.)

The five who voted for Texas (and the chief justice) were placed on the court by Republican presidents who ran on a party platform that called for the appointment of judges who would overturn Roe v. Wade. Those presidents may well have calculated that the religious background of their nominees would incline them to oppose abortion, sparing those presidents from asking a direct question that their nominees would be bound not to answer.

When Amy Coney Barrett was a law professor at Notre Dame, the university’s Faculty for Life, of which she was a member, unanimously denounced the university’s decision to honor then-Vice President Joe Biden, a Catholic, with an award recognizing “outstanding service to church and society.” The faculty group’s specific objection was to his support for the right to abortion. “Saying that Mr. Biden rejects church teaching could make it sound like he is merely disobeying the rules of his religious group,” the Faculty for Life’s resolution stated. “But the church’s teaching about the sanctity of life is true.”

Justice Barrett’s personal religious views are, of course, her personal business, but her support of this aggressive public intervention into a matter of public concern was fair game for questions, or should have been. It remained, however, far under the radar during the unseemly sprint to her Supreme Court confirmation.

Religion is American society’s last taboo. We can talk about sexual identity, gender nonconformity, all manner of topics once considered too intimate for open discussion. But we have yet to find deft and effective ways to question the role of religion in a public official’s political or judicial agenda without opening ourselves to accusations of being anti-religious.

The Mississippi abortion case the Supreme Court will hear this fall (the date has not been set) has attracted nearly 80 briefs in support of the state’s defense of its ban on abortion after 15 weeks of pregnancy and its request that the justices overturn Roe v. Wade. Well over half of the briefs are from organizations and individuals with overtly religious identities. Many of the remainder have more subtle affiliations with the religious right.

That shouldn’t be surprising. What reason other than religious doctrine is there, really, for turning back the clock on a decision that nearly a half-century ago freed women from the choice between the terror of the back alley and the tyranny of enforced motherhood? About one-third of Americans, according to a recent Gallup poll, want the court to overturn Roe. And yet, as we saw last week, the right to abortion is already functionally dead in Texas, and its fate may soon be left to the whims of Republican politicians everywhere else. It’s incumbent on the rest of us to call out those who invoke God as their legislative drafting partner.