Separation of Church & State is Crumbling, Taking Abortion With It

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The recent Supreme Court decision suspending Roe v Wade exercised so much gravitational pull on our collective attention that two equally devastating court decisions escaped most people’s notice.

They both concern the expansion of privileges Americans can now claim if they cry “religious freedom.” One requires the government to fund religious schools, and the other requires public schools to allow religious proselytizing. Both cases restrict everyone’s protections from government sponsorship of religion.

In line with these results, the recent reversal of Roe v Wade is best seen not as an anti-woman decision, but as a pro-religion decision.

The first case involved Maine’s laws about educating children in rural areas that have no local public high schools. The state pays their tuition at the public or private school that their family selects—but government funds can only be used at schools that are nonsectarian; that is, which do not provide religious instruction.

Two Maine families sued, arguing that this violated their First Amendment right to exercise their religion. SCOTUS agreed, saying if the state subsidizes private education, they cannot “discriminate against” schools simply because they are religious. It does not matter, said Chief Justice Roberts, that the Maine program was intended to provide students with the equivalent of a free public education, which is secular. So Maine taxpayers MUST support religious schooling.


In the second case, the U.S. Supreme Court ruled in favor of a former public high school football coach who lost his job for praying at the 50-yard line immediately after games (the school had said it was not allowed to favor any particular faith). SCOTUS said coach Joseph Kennedy’s prayers—joined by increasing numbers of players—were a private matter protected by the First Amendment.

The Bremerton, Washington coach had refused to move to a private location to pray, saying that he should be allowed to express his “private” faith in public—on a public school field, while performing duties as a public school employee, as part of a public school event. Imagine the pressure felt by 15-year-old players at this “private” expression of “personal” feelings. SCOTUS ruled that the public space was not to be protected from this man’s demonstrations because they involved “God” and not “Satan” or the voice of Napoleon.

Without a hint of irony, Coach Kennedy responded to the Court’s decision: “I thank God for answering our prayers.”


Our cherished First Amendment says that Congress prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another.

The Founders’ goal was to keep the federal government from establishing a national religion (such as Britain’s Church of England, Italy’s Catholic Church, or Germany’s Lutheran Church). Citizens were to be free to practice any religion they chose, or none at all.

While this admirably limits the government’s ability to control what we think (or what ideas we swear allegiance to), it can also be read as recognizing a special role for religious thought and observance. This is the cudgel it has become.

That’s why religious institutions pay no taxes, despite owning businesses that generate fabulous wealth. For example, the Mormon Church owns office buildings, shopping centers, and media companies, all of which generate tax-free income. The Catholic church is the largest landowner in the world, 177 million acres that includes farms and Manhattan commercial real estate.

So exactly how much should government support, fund, facilitate, and enable religion? To put it differently, when does Joe’s right to practice his religion infringe on Sam’s right to live a non-religious life, including the various rights and privileges the government guarantees?

Which brings us back to the Maine and Washington cases, and their connection with abortion.

A majority of those opposing the right to choose an abortion say that their opposition is rooted in religious belief. That’s exactly why that position should not be enshrined in law.

But it increasingly is.


Take birth control pills, condoms, and diaphragms. They cannot possibly cause an abortion, because they prevent fertilization from taking place. But many people are against their use because their religious leaders say so. Religious scriptures are notoriously silent or confused on this issue—for organized religion, the goal is mostly about controlling sexuality.

As abortion is increasingly criminalized, many religious people say that contraception is next. Justice Clarence Thomas, for example, says he wants to Court to examine our alleged rights to birth control and same-gender marriage. Interestingly, he hasn’t mentioned our alleged right to interracial marriage, which was only discovered in 1967. Overturning this right would nullify his own 35-year marriage.

It’s a slippery slope. And as these three cases demonstrate, we’re slipping fast. We must pay attention to ALL cases involving religious rights—because they’re a get-out-of-jail-free card for any limitations on secular rights, including your right to be free from others’ religious beliefs.

Framing abortion and contraceptive rights as a women’s issue has never worked, and it won’t work now. It’s a people issue, just as same-gender marriage shouldn’t only be of interest to gay people.

Ultimately, organized religion in America continues to conduct its highly effective War On Sex. And if progressives split into different camps demanding ideological purity—trans activists, fertile women, anti-porn feminists, diversity warriors, language police—we’ll continue to lose more of our sexual rights.

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