Conservative Supreme Court justices are rewriting our Constitution. The leaked draft of Justice Alito’s majority opinion overturning Roe v. Wade radically alters American law and our understanding of constitutional rights. It isn’t the first consequential reversal from this court, nor will it be the last. But Americans are unprepared to live under the regime being crafted by judicial fiat. We are not ready to live in a Christian nation.
Alito’s draft opinion will become a reality sometime in the next two months. Roe v. Wade and reproductive freedom as a constitutional right will be dead. In thirteen states, abortion will be outlawed. As we’ve written here on RD and as Alito’s opinion makes pretty damn clear: The end of Roe is just the beginning.
The Christian nationalists who put Trump into power and packed the high court won’t be satisfied until abortion and contraception are outlawed across the United States. Alito’s lip service in his draft opinion about returning these issues to the states and to the people is disingenuous. The court could have decided a case like this at virtually any time, but waited until after it had completely gutted the Voting Rights Act in Shelby County (2013) and Brnovich (2020) and after it had upheld partisan gerrymandering in Rucho v. Common Cause (2019). Those decisions protect the power of the conservative white Christian who would otherwise be subsumed in a demographic tide that would keep them out of office for good.
The measures empower the shrinking demographic that’s raging against the dying of its privilege—that wants to resurrect long dead bans on contraception (Griswold) and gay marriage (Obergefell v. Hodges). That wants to criminalize being gay (Lawrence v. Texas). Alito’s opinion reads like a hit list, with BIPOC, women, and LGBTQ people as the target. They will not stop until conservative white Christian men are a special, privileged class and everyone else sits in the second class cars. In short, they want a Christian nation.
And that’s why they’ve also targeted the separation of church and state.
That separation prevents religious extremists from realizing their Christian nationalist dream and has been a major roadblock for opponents of reproductive rights because it forces them to talk about abortion in unfamiliar and secular terms. Yet Alito’s draft opinion begins and ends with religion. Some will disagree because Alito phrases it as “morality,” but that’s the point: he’s forced to adopt euphemisms for imposing his conservative Christianity on us all.
For a brief, clear moment during the oral argument for the very case that this draft opinion decides, Dobbs v. Jackson Women’s Health Organization, Justice Sotomayor cut through all the pretense built up around this issue and asked Mississippi: “How is your interest anything but a religious view?” The state fumbled for an answer. If you want a clearer connection between church-state separation and reproductive justice, a few days ago Marjorie Taylor Greene claimed that “Satan’s whispers” lead to abortions.
Marge Greene says when women get abortions, it’s because Satan has whispered in their ears and promised them that if they do it, the guy they are with will marry them. pic.twitter.com/ybQkSJEOOK
— Ron Filipkowski 🇺🇦 (@RonFilipkowski) April 29, 2022
The court has three church-state cases this term. I imagine that if this opinion hadn’t been leaked, they would have decided these first to soften the ground for Alito’s bombshell.
In Carson v. Makin, the court is likely to say that states must fund religious education. That builds on two recent cases, Trinity Lutheran (2017) and Espinoza (2020). Our Founders understood that to wield the state’s taxing power to inculcate religion was to violate the religious freedom of every citizen. In the Virginia Statute for Religious Freedom, a forerunner to our First Amendment, Thomas Jefferson wrote that taxing citizens to fund religion was “sinful and tyrannical.” But this court is poised to say that not requiring government-enforced tithing is discrimination against religion, instead of one of our strongest guarantors of religious freedom.
In Kennedy v. Bremerton School District, the court could permit an agent of the state to use the machinery of the state to impose his personal religion on other people’s children. A football coach at a public high school gathered students at the 50-yard line for a post-game pep talk and prayer circle. The students felt pressured to join him. At every step in the litigation, the school district tried to accommodate the coach—to let him pray in a way that didn’t pressure students. But that became impossible when the Christian Nationalist legal outfit First Liberty Institute stepped in.
As I write in American Crusade: How the Supreme Court is Weaponizing Religious Freedom, First Liberty Institute has “fought to keep evolution out of public schools; and bible classes, Jesus portraits, and school-imposed prayer in public schools.” This is an organization dedicated to Christian supremacy, which it markets as religious freedom. One judge hammered the Institute for spinning a “deceitful narrative” of the case. After the Institute got involved, the coach was not content with accommodations that protected the religious freedom of students, but instead demanded to use the power of his office, which gave him access to a captive audience of school children, to pray with those school children.
If the Court gets this case wrong, the religious freedom of every public school student in the country is in jeopardy. Instead of secular public schools, we will have public schools where teachers get to decide whether their classrooms are secular or not—or, let’s be honest, 99% of the time, Christian or not. And if you’ve been paying attention to the “don’t say gay” and CRT bans around the country, you know which way state legislatures will push this. These are not isolated political flash points or “culture wars.” These are all part of the deliberate conservative project to undermine and ultimately kill American public schools.
If you still doubt the crusade to turn this into a Christian nation, yesterday the Court decided that a group which is dedicated to indoctrinating “the next generation … with the knowledge of how America was founded as a Christian nation,” has a constitutional right to fly the Christian flag over Boston City Hall. On Jan. 6, 2021, Christian Nationalists proudly flew this flag at their rallies and marches, and insurrectionists even paraded the flag on the floor of the U.S. Senate after they breached the Capitol. It marked their territory on January 6th and will do the same flying over the seat of government in one of our oldest cities.
This term’s likely decisions, along with a host of other decisions this Court has handed down over the last decade and which I detail in American Crusade, will likely do incalculable damage to the separation of church and state. And that is a direct threat to our democracy. Without that foundation, our pluralistic democracy will crumble, because without that separation, religious freedom becomes religious privilege. That’s where this court is taking us: to a Christian nation where conservative white Christians are a special, favored class and all others are second class citizens.
The separation of church and state is one bedrock that protects and enshrines equality in a way that too many of us do not understand, but which will be painfully obvious when it’s gone. That separation is what ensures that we all have freedom without favor, and equality without exception. That separation is America. And if the justices finally tear down the constitutional wall that ensures that separation, they will be tearing down America and erecting on its ashes a Christian nation.
Americans are not ready.
