David E. Weisberg

Menorahs and abortions

The overturning of Roe v. Wade would not be a ruling on freedom of religion; it would simply return to the states full authority to regulate abortions
A menorah and Christmas tree on the steps of Pittsburgh, Pennsylvania's City-County Building. (Pittsburgh Jewish Chronicle/Toby Tabachnick)
A menorah and Christmas tree on the steps of Pittsburgh, Pennsylvania's City-County Building. (Pittsburgh Jewish Chronicle/Toby Tabachnick)

Rabbi Joshua Hammerman’s recent blog, “How a menorah may bring about a ‘Christian nation,’” purports to offer a “reminder of how vulnerable we are to losing the constitutional right” provided by the Establishment Clause of the First Amendment: the right to freely practice any religion, including Judaism, in a state or nation that has no official religion established by a Christian majority.

Rabbi Hammerman’s fears and forebodings are entirely misplaced; the “vulnerability” he perceives is generated by his own profound misunderstanding of American constitutional law. It’s important to set the record straight.

The logic of Rabbi Hammerman’s post is not obvious, but it seems to run somewhat along these lines. In 1989, the US Supreme Court decided, in a case named Allegheny County v. Greater Pittsburgh ACLU, that a Pennsylvania county did not violate the Establishment Clause when it erected a menorah, alongside a Christmas tree, on government-owned property.

This decision, which was (according to Rabbi Hammerman) applauded by the more Orthodox spectrum of the Jewish community, but not welcomed by “the Jewish establishment,” supposedly amounted to a crack in the “Wall of Separation” between church and state, which Wall has always served to protect minority religions in the US.

The argument is that that crack might soon cause the Wall to collapse, because the Establishment Clause now is imminently threatened by (1) the recent comment of Michael Flynn that America should embrace “one religion,” and (2) the possibility that in the near future a Supreme Court decision might overturn Roe v. Wade (1973), which established a right, protected by the US Constitution, to an abortion under certain circumstances.

If the rabbi wants to worry about the fatuous, absurd comments of a former general, who was, for three months, part of the Trump administration, that is his business. I personally don’t think Mr. Flynn is a serious threat to any minority religion, including Judaism.

The question of abortion is different. The rabbi apparently believes that the Allegheny County decision can somehow be construed to support a reversal of Roe v. Wade and, furthermore, that if Roe is indeed reversed, rights formerly protected by the Establishment Clause will be lost. He writes:

And should we be surprised that abortion looks to be the next and biggest brick to fall from the Wall [of Separation], as a distinctly anti-Judaic view of when human life begins may shortly become the law of the land?

America has hardly been perfect in its treatment of minority groups, particularly those of color, but it has been exemplary in its treatment of minority religions. With all the hate Jews have experienced here, it’s never been state-sponsored religious persecution. Now, if Roe is overturned, rabbis who in good conscience advise their congregants to get abortions will be in the crosshairs, legal and perhaps otherwise.

(Regarding America’s “exemplary” treatment of minority religions, one should consider the anti-Catholic Blaine Amendments that were adopted by 37 states in the 19th century and are still in effect today.)

The rabbi is so far off base about Roe that he’s not even in the ballpark.

First of all, Roe had nothing to do with the First Amendment’s Establishment Clause. The Roe decision was instead based on the Due Process Clause of the Fourteenth Amendment, which was deemed to protect from unreasonable interference by a state a pregnant woman’s right of privacy.

Secondly, in Roe the Court explicitly rejected the idea that it was deciding “when human life begins.” This is what Justice Blackmun, in his opinion for the Roe majority, wrote:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

Because Roe explicitly refrains from deciding when human life begins, its reversal could not amount to rejecting some particular answer to that question.

Specifically, if the Court were to overturn Roe, the Court would most certainly not be deciding as “the law of the land” that human life begins at conception. Rather, it would simply be returning to the states full authority to regulate abortions. That is an authority which the states had exercised, without any federal judicial intervention, for some 200 years — from before the adoption of the Constitution up until 1973, when Roe was decided.

If Roe were overturned, each state would be free to regulate abortion as it saw fit, which was true before Roe. It is a certainty that Connecticut, Rabbi Hammerman’s home state, would continue to permit abortions liberally, so the rabbi need not fear that he might be “in the crosshairs,” if Roe were overturned.

If Roe were overturned, different states would undoubtedly regulate abortion differently. But such differences existed before Roe, and they have persisted to this day after Roe. And, both before and after Roe, the First Amendment provided robust protection to Judaism and other non-Christian minority religions.

In sum, Roe is grounded on a right of privacy protected by the Due Process Clause of the Fourteenth Amendment, and is entirely unrelated to the First Amendment’s Establishment Clause. There is, therefore, no good reason whatsoever to think that Establishment Clause protections will somehow disappear if Roe is overturned.

About the Author
David E. Weisberg is a semi-retired attorney and a member of the N.Y. Bar; he also has a Ph.D. in Philosophy from The University of Michigan (1971). He now lives in Cary, NC. His scholarly papers on U.S. constitutional law can be read on the Social Science Research Network at:
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