When Judges Pretend To Be Theologians

Now in post form https://t.co/fDbLLeoJqT

— Elie Mystal (@ElieNYC) February 23, 2024

In his opinion, Parker wrote: “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. [Alabama’s Sanctity of Life statute] recognizes that this is true of unborn human life no less than it is of all other human life—that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”

I agree this is crackpot language which has no place in a judicial opinion. But at the seminary I attended, this would practically get you tossed out as utter bafflegab. I don’t mean the archaic ignorance about “the wrath of God,” I mean the first phrase: “wrongfully destroyed.”

You could drive a Mack truck through that gaping loophole. Especially if  “all human beings bear the image of God, and their lives cannot be destroyed without effacing his [sic] glory.” When does that not apply? And who are you to assert you know the mind of God to determine when those circumstances are?

This is not, despite what Mystal says, “Christian orthodoxy.” 

The legal questions are more interesting because they are, frankly, quite real:

Meanwhile, the legal questions raised by embryonic anthropomorphization are legion, and illustrate the moronic logic of the Alabama court. Do the icicle babies get a Social Security number? Can their mothers count them as dependents on their taxes? Do their fathers have to pay child support? Are we all nine months older than we think and, if so, do 17-year-olds get to vote in the upcoming election? Is Frosty the Cellular Snowman entitled to a public education, like all the other kids, before he melts away?

The biological problem is, of course, that a single cell does not a human being make. A fertilized egg is still just a human egg. It is as potentially life as it was before fertilization. It’s now a zygote, but until cell division, it’s still a single cell. That’s why it survives freezing, which would kill a blastocyst. That’s also why the many fertilized eggs used in IVF don’t produce human litters. It’s because they are only potentially human. It’s not because they are essentially human.

But here’s the real problem:

It would be entirely appropriate to focus solely on the nonsensical legal argument put forward by the Alabama Supreme Court, but it’s important to point out that this argument is not actually a legal one. It is a religious argument: The court is saying the law cannot be interpreted absent the justices’ exclusive interpretation of God’s will. 

This is clearly unconstitutional. The Alabama ruling, on its face, violates the Establishment Clause of the First Amendment. The court is privileging one religious sect—dominionist Christians—over all others, and it is doing this to extract legal payments from others, namely hospitals and clinics, that don’t share the justices’ religious viewpoint. Using the power of the state to force others to live in accordance with a particular religious belief is the very definition of state-sponsored religion. 

The US Supreme Court could intervene to stop Alabama… but have you met the people on the Supreme Court? For the court to overturn Alabama’s ruling for violating the First Amendment, the conservatives would have to admit that their entire anti-abortion argument—as manifested in the Dobbs v. Jackson Women’s Health Organization ruling—was also motivated by Christian theological arguments over when “life” begins. That will never happen. The conservatives who are in charge of the Supreme Court have committed themselves to using Bible stories to take away the rights of women and pregnant people, and they’re not going to let a pesky thing like the Constitution stand in their way. 

What’s troubling to me is the extent to which the rest of the country has just accepted that we live under the rule of theocrats in robes and there’s nothing we can do about it. Establishment politicians, media figures, and even non-theocratic judges just kind of shrug and pretend that scripture is a reasonable basis for judicial pronouncements in a free society. If these judges and justices were establishing any religion other than fundamentalist Christianity, people would lose their minds. If an Alabama court ruled that Trump had to be kicked off the ballot because he lies so much he lacks satya, and rested their opinion in quotes from the Vedas, there would be riots. The ruling would be overturned and the judges, probably, impeached. 

But because it’s Christianity being shoved down our collective throats against our wills, because it is the majoritarian religion that is riding triumphantly into our courts, people accept these rulings as legitimate, if unfortunate, statements of law.

It’s not really Xianity that’s being promoted in this court opinion. It’s power and dominance in a culturally acceptable wrapper. It is, dare we say, ChINO: Christian In Name Only. If that.

Mystal and I agree more than we disagree.

But my favorite legal argument is: if zygotes are now children, what are the legal implications, and how does the Alabama Supreme Court avoid them? God wants us to deport pregnant immigrants? God wants us to ignore birthright citizenship enshrined in the 14th amendment? God doesn’t want men to pay child support?

There’s a lot more here than IVF to worry about, including the free and unhinged use of “God” in legal opinions and government edicts. I don’t think this ends the way a few religious cranks imagine it does.