Abortion Was the Beginning: Religion, Not the Constitution Motivates SCOTUS

The Founding Fathers knew well the dangers of intertwining religion and civil government and sought to build a strong separation between church and state.  Indeed, some of the original colonies had been populated by those seeking religious freedom, here in Virginia forced support of the Church of England was a recent memory, and the horrors of the wars of religion in Europe were well remembered. In the U. S. Supreme Court now controled by religious extremists its past term, continued its erosion of this crucial separation by forcing Maine taxpayers to fund religious schools and, of course striking down Roe v. Wade based on the religious beliefs of the majority on the court as a column in the New York Times by a Pulitzer prize winner who has long covered SCOTUS lays out.  The Dobbs ruling overturning Roe was the result of relentless efforts by the far religious right to inflict its religious beliefs on the nation as a whole and the product of carefully plotted cases that would place the opportunity to reverse Roe before the Court.  In Texas, as a piece here describes similar handcrafted cases are working their way through the lower courts to place LGBT rights and same sex marriage again before the Supreme Court which will again likely put the religious beliefs of the extreme majority ahead of constitutional principles.  Here are column highlights from the Times:

My own way of keeping track of a Supreme Court term is to log each of the term’s decisions on a chart labeled by category: criminal law, administrative law, speech, federalism and so on. . . . the other day, going over my charts before filing them away to prepare for the next term, a realization struck me. I had put Dobbs in the wrong place. Along with the decision about the praying football coach and the one requiring Maine to subsidize parochial school tuition, Dobbs belongs under “religion.”

[S]tep back from today’s artificial arguments about originalism and history, and consider the powerful social movement that led consecutive Republican presidents to appoint anti-abortion justices and that then drove the abortion issue through the Supreme Court’s open door.

Does anyone really think it was motivated by disapproval of the court’s reliance in Roe v. Wade on substantive due process, an interpretation of the 14th Amendment that accords meaning to the word “liberty” in the due process clause? Is there anyone who believes that if only the Constitution had included the word “abortion,” the anti-abortion movement would have failed to gain political traction?

No one really buys the argument that what was “egregiously wrong” with Roe v. Wade, to quote the Dobbs majority, was the court’s failure to check the right analytic boxes. It was not constitutional analysis but religious doctrine that drove the opposition to Roe. And it was the court’s unacknowledged embrace of religious doctrine that has turned American women into desperate refugees fleeing their home states in pursuit of reproductive health care that less than a month ago was theirs by right.

[D]uring the nearly two months between the leak of his Dobbs draft on May 2 and the release of the official opinion on June 24, it became painfully obvious to all that if Roe fell, abortion would soon be illegal or all but inaccessible in about half the states. That was the point, after all.

Not only did that prospect make no difference to the Dobbs majority — the official opinion was essentially unchanged from the leaked draft except for added sections that responded to, and distorted, the dissenting opinion — but Justice Alito actually had the gall to write that “we do not pretend to know how our political system or society will respond to today’s decision.” Polls conducted before the opinion’s release showing that upward of two-thirds of Americans wanted to retain a right to abortion . . . .

Justice Alito took pains to present the majority’s conclusion as the product of pure legal reasoning engaged in by judges standing majestically above the fray of Americans’ “sharply conflicting views” on the “profound moral issue” of abortion . . . . yet that very framing, the assumption that the moral gravity of abortion is singular and self-evident, gives away more than members of the majority, all five of whom were raised in the Catholic Church, may have intended.

[T]he justices, in their “concern for the lives of fetuses,” overlooked the “lived experience” of women. “To show no regard for a lived experience is immoral,” he wrote.

Indeed, the fetus is the indisputable star of the Dobbs opinion. That is not necessarily obvious at first reading: The opinion’s 79 pages are larded with lengthy and, according to knowledgeable historians, highly partial and substantially irrelevant accounts of the history of abortion’s criminalization. In all those pages, there is surprisingly little actual law.

The Casey decision was five days shy of 30 years old when the court overturned it, along with Roe v. Wade, on June 24. Given that this was their goal from the start, the justices in the Dobbs majority really had only one job: to explain why. They didn’t, and given the remaining norms of a secular society, they couldn’t.

There is another norm, too, one that has for too long restrained the rest of us from calling out the pervasive role that religion is playing on today’s Supreme Court. In recognition that it is now well past time to challenge that norm, I’ll take my own modest step and relabel Dobbs for the religion case that it is, since nothing else explains it.

Turning to Texas, just as the Mississippi case that lead to Roe's demise was carefully plotted by far right activists, case are pending in Texas that will position SCOTUS to strip away LGBT rights and same sex marriage based again on religious belief, not the U.S. Constitution.  Here are article excerpts:

In the wake of the toppling of Roe v. Wade and with Justice Clarence Thomas urging the U.S. Supreme Court to revisit rulings on gay sex and marriage, Texas is the stage for several lawsuits dealing with LGBT rights.

Right now, a half dozen cases on everything from insurance coverage for HIV prevention to employment discrimination and same-sex marriage are wending their way through state and federal courts here. Their outcomes could radically alter rights for lesbian, gay, bisexual and transgender people in Texas and across the country.

The lawsuits all have one thing in common: former Texas solicitor general Jonathan Mitchell. . . . .Mitchell opened up a law firm in Austin four years ago with the goal of systematically dismantling decades of court rulings he believes depart from the U.S. Constitution.

The Dallas Morning News is tracking six of his cases that originated in Texas and deal with LGBT rights. Here’s a summary of each case.

Gay Marriage

Dianne Hensley vs. State Commission on Judicial Conduct (Third Court of Appeals) and Brian Keith Umphress vs. David Hall, et al. (Northern District of Texas). Summary: Both of these cases were brought by Texas officials with the authority to perform weddings but who do not want to offer marriages to same-sex couples because they say it violates their religious beliefs.

One case in state court, filed by McLennan County Justice of the Peace Dianne Hensely, argues that marriage officiants who are government officials should be able to recuse themselves from performing ceremonies for gay couples if the couples have a viable alternative option to be wed. The other case, in federal court and filed by Jack County Judge Brian Keith Umphress, makes a similar argument.

But the Umphress case goes further, arguing that the U.S. Supreme Court erred when it declared gay marriage bans unconstitutional in 2015. It urges the court to revisit that decision. “There is no constitutional right to same-sex marriage,” the Umphress. “The federal judiciary has no authority to recognize or invent ‘fundamental’ constitutional rights.”

Umphress’ case is awaiting a decision from the federal appeals court. Hensley’s case is before a state appeals court in Austin. Other actors: Chad and Dusty Fillmore of Fort Worth are also listed as lawyers for Umphress, as are lawyers from the Plano-based Christian nonprofit law firm First Liberty Institute and Jacksboro-based firm Spiller & Spiller.

Potential effects: If Mitchell wins either case, governmental officials who are marriage officiants would be able to wed only opposite sex couples. If the Umphress case proceeds, the question of same-sex marriage could again end up before the Supreme Court. In his concurring opinion in the decision overturning Roe last month, Clarence Thomas urged his fellow justices to take up the issue if a case questioning the constitutional right to gay marriage presents itself.

Insurance Mandates

John Kelley, et al., vs. Xavier Becerra (Northern District of Texas). Summary: Plaintiffs in this federal lawsuit argue that insurers or self-insured employers should not have to cover certain kinds of preventive medical care because that would force them “to underwrite coverage that violates their religious beliefs.” The suit also targets the Affordable Care Act’s mechanisms for deciding which care private insurers must cover, arguing it gives the federal agencies and other unelected bodies undue control over decisions that should remain with Congress.

The suit specifically mentions contraception and the HIV prevention drugs known as PreP, which the plaintiffs say “facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use.”

The plaintiffs include Tarrant County residents Joel Starnes and John Kelley, who runs Kelley Orthodontics, and Braidwood Management, a business owned by anti-LGBT activist Steven Hotze. Mitchell is the lead lawyer representing the plaintiffs.

Employment Discrimination

Braidwood Management v. EEOC (Fifth Circuit Court of Appeals), Summary: The case in federal court, filed on behalf of Hotze’s Braidwood Management and the Keller-based Bear Creek Bible Church, argues that religious employers should be able to hire and fire workers based on their sexuality and gender identity.

The plaintiffs in these cases argue faith-based organizations and companies should be exempt from these protections. Mitchell represents the plaintiffs.

A federal judge in North Texas agreed with Mitchell. The U.S. Equal Opportunity Commission, the defendant, is fighting that decision at the federal appeals court. Mitchell’s response is due Aug. 1.

LGBT Library Books

Leila Green Little, et al. vs. Llano County (Western District of Texas). Summary: The federal lawsuit, filed by citizens of Llano County, argues their First and Fourteenth Amendment rights were violated when local leaders pulled certain titles from the library’s child and teen sections that they deemed “pornographic.”

Other actors: Texas Attorney General Ken Paxton has filed a motion to intervene on behalf of the state, which the plaintiffs oppose. Several other lawyers are also representing some of the same officials, as well as other defendants, as Mitchell.

Potential effects: If they win, the plaintiffs could force local Llano leaders to replace titles they pulled from library shelves and discourage similar efforts in future.

‘Save Chick-fil-A’

Patrick Von Dohlen, et al. vs. city of San Antonio (438th District Court in Bexar County). Summary: This state lawsuit, filed by a handful of would-be Chick-fil-A customers, argues San Antonio violated a state’s so-called Save Chick-fil-A law by booting the fast food chain Chick-fil-A from the local airport based on its charitable donations to Christian groups that oppose LGBT rights. The law, which Gov. Greg Abbott signed in 2019, prohibits governmental entities from taking “adverse actions” against a business or person for their contributions to or memberships in religious organizations, and allows citizens to sue over apparent violations.

In April, the Texas Supreme Court sided with the city, saying the plaintiffs didn’t have enough proof of a violation of the law, and sent the case back to the trial court. Mitchell represents the plaintiffs who sued the city. Mitchells plans to file an amended petition in the San Antonio trial court.

Potential effects: While supporters of the “Save Chick-fil-A” law said it was written to uphold religious freedom, advocates for the LGBT community called it a thinly veiled attempt to justify discrimination in the name of faith. If the plaintiffs win, the law will have survived its most serious challenge in court and advocates worry it could embolden other citizens to bring similar suits.

As with the Dobbs case, these suits are designed to allow the U.S. Supreme Court to roll back LGBT rights to appease Christofascists who want their alleged "religious beliefs" to override the rights of others.