Clifford Goldstein Discusses Abortion as a Religious Liberty

(Originally printed in Liberty magazine January/February 1999, pages 30-31 here)

While traversing a parallel universe (Cyberspace). I encountered the following syllogism: because opposition to abortion is based on Christian ethics, and because the Establishment Clause mandates that Christian ethics be kept apart from law, then separation demands a pro-choice position an argument akin to logician Raymond Smullyan's doctors in a mental hospital who were ready to release a schizophrenic but only after he passed a lie detector test. When asked, "Are you Napoleon?" the patient answered, "No"-and failed the test. Though the logic's flawless, the result's absurd.

The same problem now exists in the church-state separation debate. Just as Voltaire turned Pierre Bayle's apology for Christianity into an anti-Christian polemic, many separationists have turned a principle designed to pro-mote Christian morality into one that opposes it. The Establishment Clause was meant to prevent Christian (or any other religious) forms of worship, or doctrines, or dogma from being supported or promulgated by the state. Period. It had little to do with limiting religion-based morality.

On the contrary. The founders were creating a republic, a government in which the unwashed masses played a pivotal role. Thus, in order for the nation to succeed, the people-so crucial to the process-needed to be moral. The founders all called for "public (or civic) virtue"; their noble experiment, they believed, could not survive without it. And most, if not all of them believed that religion was the key to ensure that this public virtue existed.

"Liberty regards religion," wrote De Tocqueville about early America, "as its companion in all its battles and triumphs-as the cradle of its infancy and the divine source of its claims. It considers religion as the safeguard of morality, and morality as the best security of law, and sure pledge of the duration of freedom."

"Our constitution," wrote John Adams, "was made only for a moral and religious people. It is wholly inadequate for the government of any other."

Thus, the early battle regarding church-state separation was never over the need for religion, or for religious values and morals to permeate society, even (or especially) through law. The battle, instead, was over the best means of allowing religion to flourish. The accommodationists argued that because morality was crucial for the success of the nation, and because morality was crucial for the success of the nation, and because religion inculcated that morality, it was exigent upon the government to support, promote, and enforce religion. In contrast, the separationists— Madison, Franklin, Jefferson, and Washington, et. al.— holding similar premises regarding morality and religion, argued that the surest way of ensuring morality was to free religion from the state, where it could thrive on its own. 

The separationists won, of course, not only the immediate political battle, but in the verdict of history as well: religion has flourished in America (if not necessarily the morality that was supposedly its corollary) in contrast to "post- Christian" Europe, where the church has been propped up by the state for more than a thousand years. 

To seek, therefore, to strike down—on Establishment Clause grounds!—a sex education program that teaches abstinence solely because abstinence is linked to Christian morality is a gross perversion of the clause. To defend abortion rights or gay rights on separationist grounds could be like using the commerce clause to defend mail fraud. A person might have legal reasons to defend abortion or gay rights, but unless the challenged law is so overtly religion-based the Establishment Clause probably isn't one. Just because something has a religious rationale doesn't automatically make it violative of the Establishment Clause—though, under certain circumstance, it could (the government, for instance, can't carte blanche use religious rationale to make law and policy). 
The Establishment Clause, to be sure, demands fights against legislated prayer or worship during officially sanctioned school events; it demands keeping tax money from sectarian coffers; it demands keeping religious symbols from public property; it demands that judges not proselytize in the courtroom, or public school teachers in the class-room; it demands that Sunday laws be forbidden; it demands that creationism—no matter how true (as opposed to the defunct nonsense of evolution)—not be taught as religious dogma in public schools. 

But it does not demand—and in fact mitigates against—the sophistry that any law with a religious moral base automatically violates the Establishment Clause. That law might be violative for other reasons, but not on a prima facie basis because it reflects religious values. On the contrary, protecting religious values was one reason why the clause had been written, and using it as a conduit for hormonal excesses is like using Sophocles' Antigone to deny natural law or Pascal's Pensees to promote agnosticism. The Establishment Clause, in most cases, has no more to do with abortion, homosexuality, or teen sex than it does with the speed limit—and to apply it in these areas could possibly distend and stretch a principle until it loses all the vigor and strength with which it has so aptly protected our most sacred freedom for more than two centuries.

Clifford Goldstein