The news has been abuzz with outrage about a recent decision by the Alabama Supreme Court regarding IVF (“in vitro fertilization”), and Judge Tom Parker’s religious justification of the decision. Among other affirmations by judge Parker, we have, for example, the proclamation that “human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself.” (pp. 37-38) What is this kind of language doing in a legal opinion, we ask? Wouldn’t a religious justification for a legal decision violate the first amendment and the principle of separation of church and state? To review: the court decided that a frozen embryo is a child and because of this, the embryo’s parents can sue a medical center that negligently allowed some of these embryos to be destroyed. As the ruling claims, the Supreme Court of Alabama has consistently held that the unborn are included in the protections of Alabama’s Wrongful Death of a Minor Act, first enacted in 1872. The only question in this case was whether frozen embryos count as humans. But since all parties in the dispute agree that “an unborn child is a genetically unique human being whose life begins at fertilization and ends at death,” (p. 8) the conclusion that a frozen embryo is a child was inevitable. We should note that Parker’s religiously motivated opinion was his own, something he added in his concurring brief. So the court did not arrive at its decision explicitly based on an appeal to religious authority, but rather using the rationale I’ve already described. But everyone knows that the motivation for opposing abortion is overwhelmingly religious, as can be seen in this Pew Research data. Only 5 percent of non religious people think that abortion should be illegal (Gallup). The question that keeps bothering me in the abortion debate is this: haven’t religious people found a loophole in our secular government? For it seems that abortion laws allow the government to impose a religious set of beliefs on an entire (state) population. Another way of saying it is that in states that have banned abortion, non-religious people are essentially being forced to abide by a religious prohibition. That doesn’t seem right. The best approach would seem to be the system we had under Roe v. Wade, because it allowed the greatest freedom to the greatest number of people: those who had a religious reason to abstain from abortion were free to do so, and those who had no such scruples were free to act as they saw fit. But now people like judge Parker who believe that abortion angers God have forced their religion on those who do not share their religious convictions. What about people who don’t believe in God, and therefore don’t think he is angered by anything? Why should they have to submit to this conviction? What about people who believe in God but don’t think abortion angers him? Who are you, Tom Parker, to impose your religion on the rest of us? What gives you the right? According to the First Amendment, “congress shall make no law respecting an establishment of religion.” This would imply that no law should establish any particular religious belief. And yet here we are. Now, there’s an important point to be made here: just because a religion teaches a particular moral principle, that does not mean the moral principle can’t be enacted into law. Most religions teach that murder is wrong, and it is also illegal to commit murder. No one is arguing that laws prohibiting murder are a case of religious imposition. The problem comes when there is a contested practice, one where it is difficult to sort out the basic facts of the matter to the satisfaction of everyone involved. The core issue with abortion is the status of the unborn: is a fetus a person? Those who prohibit abortion claim that it must be, since a fetus is made in God’s image and because, they affirm, God imbues the fetus with a soul at the very instant that a spermatozoon fertilizes a zygote. Those on the other side argue that this is not the case at all and present alternate definitions of when and how personhood comes about, and are not willing to imbue a small collection of cells with the same legal and moral status as a fully developed human being. The problem here is the same problem that religion faces whenever it comes in contact with the factual realm: religion affirms with a very high level of conviction things which cannot be demonstrated by any conceivable means. How could anyone demonstrate that a spiritual something comes into being in coordination with a physical event? How could anyone demonstrate Judge Parker’s claim that “even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory?” (p. 38) The fact that this is non demonstrable is seen clearly in the judge’s own argument, for the only evidence he presents is the fact that religious writers from the past have believed this to be the case (among them John Calvin, Thomas Aquinas, and other lesser luminaries in the reformed tradition). This is mere affirmation, not evidence by any stretch of the imagination. The opinion is astounding in this regard. Judge Parker thinks that the religious writings of long dead thinkers are somehow determinative for the entire population of the state of Alabama! I won’t fall for the temptation to take apart his theological argument point by point even though I am sorely tempted, since this is my training. I won’t do this because the entire point of a secular society that is ruled by secular laws is that I shouldn’t have to talk about theology in this context. I should be able to gleefully ignore religious writings when it comes to public decision making. I shouldn’t have to open a single religious book or hear a single religious argument or scriptural citation when engaged in the process of deciding how our secular, democratic society should work. Nay not even a single religious word! And so I won’t. But judge Parker has actually done us all a great favor. He has brought to light that which has been hiding in the shadows: that opposition to abortion is, as I have argued, an explicit case of religion being imposed by the state on its citizens. He even–and this seems just insane–argues against so-called secular rationales given against abortion by, among others, US Supreme Court justice Neil Gorsuch. Parker’s argument goes like this: Alabama has an amendment, adopted in 2018, which states that “it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children.” The phrase “sanctity of unborn life” is the lynch pin on which everything hangs, because Parker claims that the use of the word “sanctity” places the entire discussion in the realm of the divine. As Merriam-Webster states, sanctity means “holiness of life and character; GODLINESS” (p. 29). According to Parker its use in the amendment implies reliance on religious principles, like being made in the image of God, which arise from a Christian world view. Parker notes that sanctity can also mean inviolability, and that some experts, including Gorsuch, have argued for that secular meaning in order to construct a non religious argument against abortion (the life of the unborn is inviolable). So here is Parker’s out, if he wants it. This is where he can follow the lead of other obfuscators who use the tools of secular reasoning to pursue a religiously motivated agenda. That keeps up the appearance of secularism. But he doesn’t do it! He claims that “When the people of Alabama adopted [the amendment] they did not use the term ‘inviolability,’ with its secular connotations, but rather they chose the term ‘sanctity,’ with all its connotations.” (p. 28) The phrasing is telling. He contrasts “secular connotations” with “‘sanctity’ and all its connotations.” Why the vague wording of the second option? Because it is slight of hand. Even a religiously motivated judge like Parker might wince at saying ‘religious connotations,’ or theological, or divine, or Christian, in a legal document. But as you read on, it is clearly what he does mean. I’m sorry that the people of Alabama, and some of its judges apparently, don’t understand the Constitution of the United States of America, but the law of our land is that you don’t get to write laws based on the religious connotations of a word. To be clear: no laws in the United States can be based on religious words, concepts, connotations, or cogitations! Once Parker establishes that religious connotations is the way to go, there follows some eight pages of unpacking via citations from the aforementioned constellation of dead white theologians–as promised I will not engage. The move is hilarious for its absurdity. One word choice opens the gates of heaven! Open them wide and drive semi trucks and trains full of theology into our secular state! How come no one else thought of this? But if it is absurd and concerning, it is also, again, revealing: opposition to abortion is religious, and the prohibition of abortion is based on religion and theology. And even those who argue against abortion using secular arguments are just taking that approach for pragmatic reasons. Thank you, Tom Parker, for entering this permanently into the legal record. Full Text of Supreme Court of Alabama James LePage etc. v. The Center for Reproductive Medicine