A professor of intellectual history at Georgia State has an op ed piece on today’s Washington Post website outlining how, and why, the US Supreme Court erected a wall of separation between church and state in the mid- to late 20th century — and how he fears the extreme right-wing majority on today’s court is undermining it.
The piece, headlined “What the end of Roe signals about the rise of Christian power,” is by David Sehat, author of This Earthly Frame: The Making of American Secularism (Yale, 2022), and it combines a layperson-friendly review of relevant case law with informed speculation about what may come next if Roe v. Wade is overturned next month.
Back in March when the book first came out, Sehat was also interviewed for John Fea’s website Current. Fea is the author of Believe Me: The Evangelical Road to Donald Trump among other, more scholarly, work; he’s an evangelical himself, and his interview with Sehat was illuminating. More on that later.
But first, today’s op ed. Sehat’s argument in the Washington Post is pretty well summed up in the subhead: “Conservative Christians have waged a war against the U.S. being a secular, civic republic.” The point can be argued either way, but Sehat’s argument has merit.
Here’s why. Most commentary about Justice Alito’s draft opinion has centered on the threat it might pose, if adopted by the whole court, to precedents grounded in the constitutional right to privacy. Sehat touches on some of the same cases as other commentators, but he is concerned more with the separation of church and state.
Citing the evangelical magazine Christianity Today and the Catholic bishops’ conference, he argues: “Conservatives have long been explicit in their view that the right to abortion had to be countered to maintain the Christian underpinnings of American society.” He explains by citing several cases that led the court to uphold rights basic to a diverse, secular society. The right to privacy was not the only such right. Sehat says it is this secular vision that is threatened by the reasoning behind Alito’s draft opinion:
Part of their objection to the legalization of abortion was the way the court simply assumed that the United States was a secular, civic republic. Roe marked the culmination of a 10-year interrogation of the role of religious groups within American society by the court. The justices rejected the power of religious leaders to define social and moral norms — to the utter dismay of those who saw Christian values as the bedrock of American society.
The justices first addressed religion in schools in Engel v. Vitale (1962) and School District of Abington Township v. Schempp (1963) by disallowing school prayer and overt religious exercises. In Griswold v. Connecticut (1965), the court weighed in on contraception by allowing birth control to be sold and advertised, disregarding the long-standing religious opposition that had led to laws forbidding it. It then tackled popular entertainment in Stanley v. Georgia (1969), permitting obscene films, books and other materials to be made and sold.
Through these cases, the court rejected the stance of Christian religious groups that said bans on obscenity were an expression of public morality. By the time the court took up the question of abortion, religious conservatives had grown outraged that their moral positions received no consideration.
Citing an article by Laurence H. Tribe in the Harvard Law Review, Sehat says in Roe v. Wade, the high court reasoned that neither the judicial nor the legislative branches could weigh in on the theological issue of when life begins:
Rather than deciding the precise status of an unviable fetus, it asked itself the question, in Tribe’s words, “Who should make judgments of that sort?” The answer was clear, given the court’s prior rulings. The court should not decide, nor should political players at the state or federal level, nor should religious teachers. An individual woman in consultation with her doctor was the only person charged with making those judgments.
Here was a clear articulation of liberalism, which involved seeing women as capable of moral self-determination independent of religious leaders and even their families. It expressed what the Jesuit theologian John Courtney Murray had earlier called “the secularist tradition of the autonomous man.”
Sehat argues the court had no choice but to duck the theological issue:
In deciding Roe, the court made its commitment to secularism explicit. It had to. The question of when human life began and the exact status of a fetus were essentially religious questions. Different religious groups took divergent positions on abortion. Taking a stance within the dispute would involve the court in a religious debate, which it was loath to do because such a decision would violate the separation of church and state that it had earlier proclaimed.
With that historical and legal background in mind, Sehat sees a clear trend in the court’s willingness in recent years to decide issues in favor of plaintiffs under the free exercise clause even when those decisions will infringe on the rights of others — gay couples who wish to buy wedding cakes, for example, or public health authorities trying to mitigate community spread of the SARS-CoV-2 virus. In today’s op ed piece he argues:
In recent years, the conservatives on the court have used the notion of religious freedom to carve out larger and larger institutions in American life — including for-profit corporations — that are able to make religious determinations limiting the choices of others. In doing so, they have helped unleash the religious authority that the court tried to contain in the 1960s and early 1970s.
Sehat’s interview with John Fea, in a standing Current feature called “The Author’s Corner,” gives some of the back story. In a nutshell, Sehat said:
This Earthly Frame shows that the American secular order did not flow seamlessly out of the American founding nor was it required by the Constitution as it was originally adopted. Rather, American secularism was the result of a layered religious conflict in the 20th century that played out in the courts and that left the U.S. Supreme Court with no option but the adoption of a secular order as a condition of social peace and political equality.
Sehat told Fea he wrote This Earthly Frame as a kind of antidote to the myth that America has fallen away from it founding as an exemplary Christian nation. But he didn’t want to go to the opposite extreme and claim the founders had no religious principles:
Many discussions about the proper role of religion in American life tend to presume a past that did not exist. Conservatives nostalgically speak of a time in which religion (or Christianity) occupied a central place in public life. But they tend to gloss over or ignore or simply deny the social conflict that the public place of Christianity provoked. Many progressives speak as though the nation was born secular and tend to construe the contemporary activities of the Religious Right as a betrayal of founding arrangements. Neither of these conception are right. If you want to understand how the American secular order came into existence, why it has taken the peculiar shape that it has, why it is riddled with tensions and a certain amount of weakness, and why both conservatives and progressives tend to be unhappy with it, this is your book.
Instead, Sehat said, the kind of secularism at risk today — one in which individuals of all faith traditions, or none at all, are allowed to exercise their personal beliefs without interference by government — arose largely in the 20th century. He said that’s because it arose largely to mediate the competing interests of an increasingly pluralistic American culture. The myth, he said, threatens that balance:
I decided to write This Earthly Frame to show the growth of an alternative vision of government, a secular one, and its relationship to religious ideas. One of the central arguments of the book is that American secularism, which I define primarily as a political arrangement rather than a personal irreligious stance, drew upon religious people for support. Those religious people offer a model of how to understand the proper relationship between personal religious ideals and governance in a pluralistic society.
Sehat added:
This Earthly Frame shows that the American secular order did not flow seamlessly out of the American founding nor was it required by the Constitution as it was originally adopted. Rather, American secularism was the result of a layered religious conflict in the 20th century that played out in the courts and that left the U.S. Supreme Court with no option but the adoption of a secular order as a condition of social peace and political equality.
Sehat’s argument is far from being the last word on the subject, but he seems to have a good grasp on the possible repercussion’s of Justice Alito’s draft opinion and the Supreme Court’s lurch to the extreme right-wing. For a couple of years now, I’ve been concerned that some of the court’s decisions under the free exercise clause come dangerously close to establishing a rather narrow, sectarian interpretation of “Judeo-Christian” values and bringing the coercive power of the state to bear to enforce them — to the detriment of a secular, pluralistic society. I hope we’re both wrong, but David Sehat seems to share that concern.
Works Cited
David Sehat, “What the end of Roe signals about the rise of Christian power,” Washington Post, May 23, 2022 https://www.washingtonpost.com/outlook/2022/05/23/what-end-roe-signals-about-rise-christian-power/.
__________, “The Author’s Corner with David Sehat,” interview by John Fea, Current, March 11, 2022 https://currentpub.com/2022/03/11/the-authors-corner-with-david-sehat-2/.
[Published May 24]
Ordinary Time 