A ‘C’ grade for Ruth Marcus on abortion rights

benfell

See update for January 23, 2023, at end of post.

Ruth Marcus still wants an answer to Sonia Sotomayor’s question:[1]

“How is your interest anything but a religious view?” Justice Sonia Sotomayor asked the lawyer for the state of Mississippi during oral arguments in the case [Dobbs v. Jackson Women’s Health Organization] that would later eliminate the constitutional right to abortion. “So when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?”[2]

I don’t find Marcus’ op-ed especially well argued. She relies,[3] rather, on cases making their way through the courts arguing that the state abortion bans that Dobbs v. Jackson Women’s Health Organization enabled infringe on other (than conservative Christian) groups’ religious rights,[4] as if the mere existence of these cases, which have yet to be decided, is sufficient.

A three-year old op-ed from the New York Times helps. In it, Katherine Stewart and Caroline Fredrickson argue,

When religious nationalists invoke “religious freedom,” it is typically code for religious privilege. The freedom they have in mind is the freedom of people of certain conservative and authoritarian varieties of religion to discriminate against those of whom they disapprove or over whom they wish to exert power.

This form of “religious liberty” seeks to foment the sense of persecution and paranoia of a collection of conservative religious groups that see themselves as on the cusp of losing their rightful position of dominance over American culture. It always singles out groups that can be blamed for society’s ills, and that may be subject to state-sanctioned discrimination and belittlement — L.G.B.T. Americans, secularists and Muslims are the favored targets, but others are available. The purpose of this “religious liberty” rhetoric is not just to secure a place of privilege, but also to justify public funding for the right kind of religion.[5]

No less than Samuel Alito, who authored the Dobbs decision overturning Roe v. Wade,[6] took a child’s question—“Who is that man [on a rustic wooden cross]?” as evidence of secularization and even hostility toward “religion,” not merely Christianity, but religion, generally.[7] Would he have inferred as much from a child, in reference to a carving of the Buddha in San Francisco’s Japanese Tea Garden, asking who that fat man with a well-rubbed (for good luck) belly is?

This begins to reach to what evangelism insists upon, that its exercise of religion mandates proselytization,[8] thus the imposition of evangelists’ religion on others, thus, inherently, a diminishing of contrasting religious viewpoints.[9]

When evangelicals are not free to impose their religion on others, publications such as the Christian Post breathlessly report on how “Christians” are persecuted worldwide. The claim is far from new. I remember as a teenager (this would be the better part of fifty years ago), when visiting my great Aunt Lelia and Uncle Lee’s farm near Aliquippa, finding an even-then old book on their shelf making this very point.

When evangelicals’ assertion of religious privilege becomes law, it amounts to a theocratic[10] repression of alternative religions, including, as Marcus points to, Judaism and even pro-choice denominations of Christianity.[11]

Sotomayor’s question was indeed well-founded and Marcus merely hints at this as she notes that Sotomayor received a stumbling non-answer.[12] But I have had to fill in vast chunks of Marcus’ argument from other sources. And so I am less than impressed.

Update, January 23, 2023: Since publishing this post, I have found a Jewish Telegraphic Agency article that helps to enumerate the lawsuits making their way through the courts in response to state abortion bans.[13] I’ve also added other citations, which I had mistakenly omitted, where appropriate.

  1. [1]Ruth Marcus, “Does Dobbs violate the establishment clause?” Washington Post, January 20, 2023, https://www.washingtonpost.com/opinions/2023/01/20/abortion-dobbs-establishment-clause-sotomayor/↩
  2. [2]Ruth Marcus, “Does Dobbs violate the establishment clause?” Washington Post, January 20, 2023, https://www.washingtonpost.com/opinions/2023/01/20/abortion-dobbs-establishment-clause-sotomayor/↩
  3. [3]Ruth Marcus, “Does Dobbs violate the establishment clause?” Washington Post, January 20, 2023, https://www.washingtonpost.com/opinions/2023/01/20/abortion-dobbs-establishment-clause-sotomayor/↩
  4. [4]Jackie Hajdenberg, “5 rabbis sue state of Missouri over abortion bans on religious freedom grounds,” Jewish Telegraphic Agency, January 20, 2023, https://www.jta.org/2023/01/20/united-states/5-rabbis-sue-state-of-missouri-over-abortion-bans-on-religious-freedom-grounds↩
  5. [5]Katherine Stewart and Caroline Fredrickson, “Bill Barr Thinks America Is Going to Hell,” New York Times, December 29, 2019, https://www.nytimes.com/2019/12/29/opinion/william-barr-trump.html↩
  6. [6]Brent Kendall and Jess Bravin, “Supreme Court Overturns Roe v. Wade, Eliminates Constitutional Right to Abortion,” Wall Street Journal, June 24, 2022, https://www.wsj.com/articles/supreme-court-overturns-roe-v-wade-eliminates-constitutional-right-to-abortion-11656080124↩
  7. [7]Matt Ford, “Samuel Alito Believes That Christians Are Oppressed in America,” New Republic, August 2, 2022, https://newrepublic.com/article/167266/samuel-alito-religious-freedom-doctrine↩
  8. [8]Julie Zauzmer and Sarah Pulliam Bailey, “After Trump and Moore, some evangelicals are finding their own label too toxic to use,” Washington Post, December 14, 2017, https://www.washingtonpost.com/local/social-issues/after-trump-and-moore-some-evangelicals-are-finding-their-own-label-too-toxic-to-use/2017/12/14/b034034c-e020-11e7-89e8-edec16379010_story.html↩
  9. [9]David Benfell, “Freedom of religion,” Not Housebroken, August 7, 2022, https://disunitedstates.org/2019/12/28/freedom-of-religion/; Jackie Hajdenberg, “5 rabbis sue state of Missouri over abortion bans on religious freedom grounds,” Jewish Telegraphic Agency, January 20, 2023, https://www.jta.org/2023/01/20/united-states/5-rabbis-sue-state-of-missouri-over-abortion-bans-on-religious-freedom-grounds↩
  10. [10]Katherine Stewart and Caroline Fredrickson, “Bill Barr Thinks America Is Going to Hell,” New York Times, December 29, 2019, https://www.nytimes.com/2019/12/29/opinion/william-barr-trump.html↩
  11. [11]Jackie Hajdenberg, “5 rabbis sue state of Missouri over abortion bans on religious freedom grounds,” Jewish Telegraphic Agency, January 20, 2023, https://www.jta.org/2023/01/20/united-states/5-rabbis-sue-state-of-missouri-over-abortion-bans-on-religious-freedom-grounds; Ruth Marcus, “Does Dobbs violate the establishment clause?” Washington Post, January 20, 2023, https://www.washingtonpost.com/opinions/2023/01/20/abortion-dobbs-establishment-clause-sotomayor/↩
  12. [12]Ruth Marcus, “Does Dobbs violate the establishment clause?” Washington Post, January 20, 2023, https://www.washingtonpost.com/opinions/2023/01/20/abortion-dobbs-establishment-clause-sotomayor/↩
  13. [13]Jackie Hajdenberg, “5 rabbis sue state of Missouri over abortion bans on religious freedom grounds,” Jewish Telegraphic Agency, January 20, 2023, https://www.jta.org/2023/01/20/united-states/5-rabbis-sue-state-of-missouri-over-abortion-bans-on-religious-freedom-grounds↩

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