There is no separation of church and state at the Supreme Court
It is no longer a question of pretending that religion plays no role in the decision that (at least) five conservative judges are about to overturn deer.
In a democracy founded on the separation of church and state, we have a Supreme Court on the cusp of a decision that cements a theological view of abortion that even most Catholics do not respect.
The five judges who signed the draft opinion which would void deer (and any ruling associated with it) – plus Chief Justice John Roberts – are descendants of the Federalist Society. Over the past three decades, the blessing of the legal group has become a de facto requirement for Republican presidents who owed their election to white evangelical voters and ran on the promise of delivering an anti-deer Supreme Court.
“Religion is the elephant in the room,” says Amanda Tyler, executive director of the Baptist Joint Committee (BJC), a religious freedom legal advocacy group that takes no position on abortion. “We are all free to be religious or not, but we expect our government to be secular and to govern for all Americans and not for their religious views. And this principle is threatened by at least the appearance what’s going on in this case,” Tyler adds.
She points out that the words “religion” or “religious” do not appear once in Alito’s leaked draft opinion, but he calls abortion “a profound moral issue” – a formulation that goes beyond of the rule of law. “A lot of people see the word ‘moral’ as a religious objection, even though he goes out of his way not to use religion,” Tyler explains, which is why she calls him the elephant in the room.
Rachel Laser, CEO of Americans United for Separation of Church and State, is more blunt. She calls the leaked project a “religion-based opinion” masking a conservative political agenda – or maybe it’s the other way around. Either way, she says, “it’s scary that the Court is providing a narrow view” at a time when some “very Catholic countries have loosened their restrictions”, such as Ireland and Mexico.
She calls the impending decision by five Federalist Society alumni “a flagrant violation of the separation of church and state…an attack on the central pillar of our democracy and America’s DNA.”
The ascendancy of the conservatives, anti-deer Catholic jurists have taken forty years to form, since the founding of the Federalist Society in 1982.
“The intersection of the religious right with conservative politics happened with the anti-abortion agenda, and because evangelicals lacked a bench of jurists, they had to turn to Catholics,” says Randall Balmer , Professor of Religion at Dartmouth College. “Political conservatism is embedded in Catholic legal research.”
The Federalist Society won its first major victories under the George W. Bush administration when it successfully nominated and placed Justices Samuel Alito and Roberts – two conservative Catholics – on the Court. “No one owed their election more to the religious right than Bush,” Balmer told the Daily Beast, “And because evangelicals didn’t have a legal pew, for a long time they outsourced their ideas to conservative Catholics.”
Certainly, Catholics are not monolithic on abortion.
“In public opinion, it is white evangelicals who are much more adamant about abortion than Catholics,” says Jack Pitney, professor of American government at Claremont-McKenna College. They are the audience that Republicans are reaching with their anti-deer litmus test. Catholics line up as most voters do, with two-thirds saying deer should not be overthrown. The Catholic bishops are as disconnected from public opinion as the five SCOTUS.
In case of doubt about the inclination of a candidate for the judiciary deerthe Federalist Society could confidently guarantee that Justices Neil Gorsuch and Brett Kavanaugh would be safe picks to fulfill the former president’s promise to overturn deer. Kavanaugh became the vote that, along with Roberts, provided the anti-deer Five. Judge Barrett dropped from five to six, offering Roberts the option of dissenting on “institutional protection” grounds, knowing the conservative position would hold.
An anti-abortion Catholic and progressive on the law, Roberts favors slower progress in restricting abortion rights. He is the Chief Justice, and the certain turmoil that will come with the repeal of a law that has been in place for almost fifty years will generate chaos and tarnish his legacy.
“The ascendancy of conservative, anti-Roe Catholic jurists spanned forty years, dating back to the founding of the Federalist Society in 1982.”
At a 25th anniversary celebration of the Federalist Society at Washington’s Union Station in 2007, the late founding member Justice Antonin Scalia told the crowd of nearly 2,000, “We thought we planted a wildflower in the weeds of academic liberalism… Instead, it was an oak tree.
When Scalia died suddenly in February 2016, Republicans blocked President Barack Obama from taking his seat, arguing that his successor would be left to the next president.
In May, longtime nominee Donald Trump enlisted Leonard Leo, co-chairman of the board of directors of the Federalist Society, to give him a list of 11 justices (which quickly grew to 21) who would give him the conservative bona fides. A wealthy, thrice-married Playboy and longtime pro-choice Democrat, Trump knew he had to convince Republican voters who were skeptical that they could trust him as president to reflect their values.
“All chosen by the Federalist Society,” Trump boasted. “All gold standard,” Trump said as he rallied conservative voters with a promise to deliver the court they wanted.
Leonard Leo is a devout Catholic who makes frequent visits to the Vatican, where he is surely a hero’s welcome for facilitating the conservative, Catholic six-vote majority at Court. After Trump was elected in 2016, Leo became a regular visitor to the White House to help the 45th president deliver on his promise to the white evangelical base who turned out in droves to vote for him.
When Amy Coney Barrett, then a law professor at Notre Dame, testified in 2017 before the Senate for a lower court position, Democratic Senator Dianne Feinstein has expressed concern about her religious affiliation with an evangelical offshoot of the Catholic Church. “I think any religion has its own dogma,” Feinstein said. “In your case, Professor, when you read your speeches, the conclusion one draws is that dogma lives loudly within you.”
Feinstein has been lambasted — and not just by Republicans — for straying into territory that felt uncomfortably close to a religious test. Three years later, Democrats interviewing Barrett for the Supreme Court did not ask her about her religious activism and what connection, if any, it might have to her views on deer.
Barrett became the sixth conservative Catholic to serve on today’s Court. A seventh Catholic, Justice Sotomayor, has been nominated by President Obama. Some dispute Judge Gorsuch’s religious identity, noting that he had a Catholic upbringing but as an adult he mostly attended Episcopal churches.
Even so, it’s a stunning turnaround in religious affiliation, and it’s no coincidence that the main reason we’re about to lose deer is the moral argument advanced by the Catholic Church.
Of Judge Byron White, a Catholic appointee of John F. Kennedy who was one of two dissenters at the deer decision in 1973, to Judge Kavanaugh, whose Catholic upbringing made him a pretty sure bet for the Federalist Society to anoint in 2018, Vatican thinking on abortion came to a head.
More fights lie ahead as the uneasy truce over abortion viability and access crumbles under the weight of five unelected judges. “It’s not about religious freedom. This is an abortion rights case,” BJC’s Amanda Tyler told The Daily Beast.
“Yes deer is reversed, in a post-deer world, religious freedom arguments will be advanced by abortion advocates. Religious objection is not just on one side.