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Published online by Cambridge University Press: 24 February 2021
In Harris v. McRae, the recent case in which the U.S. Supreme Court upheld the constitutionality of the Hyde Amendment, the Court for the first time was asked to consider whether antiabortion legislation respects the establishment of religion or violates the free exercise thereof. The Court held that the Amendment did not effect an establishment of religion, and found that the plaintiffs lacked standing to raise the free exercise argument.
The writer explores the questions raised, agreeing with the Court's disposal of the establishment argument. He does find considerable.validity in the free exercise challenge, but concludes that the Court as presently constituted is unlikely to accept it. In addition, he believes that the Court, in its treatment of both arguments, either ignored or improperly dis tinguished earlier cases that supported the plaintiffs.
1 Editorial, Ringing Out, Ringing In, 227 The Nation 726 (1978)Google Scholar.
2 48 U.S.L.W. 4941 (1980).
3 Pub. L. No. 96-123, § 109, 93 Stat. 926 (1979).
4 48 U.S.L.W. at 4947.
5 Id. at 4947-48. The Court found that none of the plaintiffs had "standing to chal lenge the Hyde Amendment on free exercise grounds because none alleged, much less proved, that she sought an abortion under compulsion of religious belief." /d. at 4947.
6 Justice Brennan's dissent does discuss Sherbert v. Verner, 374 U.S. 398 (1963)Google Scholar, a free exercise case, but only as an example of "the government withholding] financial benefits in a manner that discourages the exercise of a due process liberty." Id. at 4952.
7 Editorial, Not Free to Choose, 231 The Nation 33 (1980)Google Scholar.
8 There are some who would disagree, including prominent civil libertarians: Dershowitz, Alan M. has called plaintiffs' religion arguments "frivolous," quoted in Abortion Under Attack, Newsweek, June 5, 1978, at 37Google Scholar, 40, and Freedman, Monroe H. has called them "absurd," Letter to the Editor, Anti-Abortion A ViolationŒ, 228 The Nation 34 (1979)Google Scholar.
9 See generally Editorial, Do Catholics Have Constitutional RightsŒ, 105 Commanweal 771 (1978);Google Scholar Neier, Theology and the Constitution, 227 The Nation 723 (1978);Google Scholar Editorial, Abortion, Religion and Political Life, 106 Commanweal 35 (1979);Google Scholar Does the First Amend ment Bar the Hyde AmendmentŒ A C&C Symposium on Califano, McRae v. 39 chris Tianity And Crisis 34 (1979);Google Scholar Is Abortion a Religious Issue, 8 Hastings Center Rep. 12 (1978).
10 48 U.S.L.W. 4947 (quoting Committee for Pub. Educ. & Religious Liberty v. Regan, 48. U.S.L.W. 4168,4170(1980)).
11 48 U.S.L.W. at 4947.
12 "Biological, genetic, or scientific data alone will not be able to solve the problem of when truly human life begins. The ultimate judgment remains truly a philosophical or human judgment, which gives meaning and interpretation to \the biological and other data involved." Curran, Abortion: Contemporary Debate in Philosophical and Religious Ethics,in Encyclopedia Of Biothics 17, 17-18 (1978)Google Scholar.
13 Arkansas, Epperson v. 393 U.S. 97, 103 (1968).Google Scholar
14 48 U.S.L.W. at 4947. (citaions omitted)
15 As an example of a nontheological defense of the notion that human life begins at conception, consider the following passage:
[T]he "genetics code" laid down at conception determines a unique individual, in the sense that certain traits are fixed and ranges or potentialities are estab lished ... . [T]he "code" is the beginning of that individual and is the form which directs growth and development and assimilates external influences. It is that to which the external influences happen.
Clouser, Abortion, Classification and Competing Rights, 87 Christian Century 626, 627-28 (1970).Google Scholar
16 Abortion, Religion, and Political Life, supra note 9, at 37.
17 It may well be doubted how far the validity of a law depends upon the motive of its framers, and how far the particular inducements, operating on members of the supreme sovereign power of a state, .. . are examinable jn a court of law
[I]f the act be clothed with all the requisite forms of a law, a court, sitting as a court of law, cannot sustain a suit brought by one individual against another founded on the allegation that the act is a nullity, in consequence of the impure motives which influenced certain members of the legislature which passed the law.
Peck, Fletcher y. 10 U.S. (6 Cranch) 87, 130-31 (1810)Google Scholar. Since Chief Justice Marshall wrote these words, the Supreme Court consistently has held that the decision whether a piece of legislation is constitutional does not include an inquiry into the actual legislative motivation in enacting it. Thus, even if many Congressmen did say that their purpose was to protect actual human lives, the Court was justified in finding that the Hyde Amend ment could be a means of protecting potentiallife. Epperson v. Arkansas is, of course, an exception to this rule. See text accompanying notes 19-22 infra.
18 Abortion, Religion, and Political Life, supra note 9, at 38.
19 393 U.S.97 (1969).
20 Such objections would not arise had the Court decided Epperson on freedom of expression grounds, striking down thelaw as an invasion of academic freedom, as the Chancery Court of the State had done. The Chancery Court's opinion is not officially reported, but it is quoted as saying that the challenged statute "tends to hinder the quest for knowledge, restrict the freedom to learn, and restrain the freedom to teach" in violation of the first amendment. 393 U.S..97, 100 (1969). It\is difficult to understand . why the Supreme Court rejected this reasoning as.a rationale in favor of a far less con vincing one.
21 State, Scopes v. 154 Tenn. 105, 289 S.W. 363 (1927).CrossRefGoogle Scholar
22 Haber, & Emerson, The Scopes Case in Modern Dress, 27 U. CHI. L. REV. 522, 524 (1960) (footnote omitted).Google Scholar
23 48 U.S.L.W. at 4947.
24 Califano, McRae v.491 F. Supp. 630, 741-42 (E.D.N.Y. 1980), slip opinion at 326-27 (citations omitted).Google Scholar
25 Editorial, Rights of Religion, 107 Commanweal 100, 101 (1980).Google Scholar
26 "Rabbi Feldman made plain that [for the dominant school of Jewish law] the religious duty to have an abortion when a woman's life or health is threatened is man datory, regardless of whether or not the woman desires to have a child." Plaintiffs' First Amendment Brief at 33 (citing testimony of Rabbi David Feldman, recorded at 1916-17), Califano, McRae v. , 491 F. Supp. 630 (E.D.N.Y. 1980).Google Scholar
27 Editorial, Do Catholics Have Constitutional RightsŒ, 105 Commanweal 771, 772 (1978).Google Scholar
28 L. Tribe, American Contitutional Law 827-28 (1978).
29 id.at 827.
30 id.at 828 (emphasis in original).
31 374 U.S. 398 (1963).
32 48 U.S.L.W. at 4946 n.19 (citation omitted) (emphasis in original).
33 48 U.S.L.W. at 4949 (concurring opinion of Justice White) (describing the views of the dissenters).
34 Neither is it obvious how the Court would distinguish the long line of cases, start ing with Gideon v. Wainwright, 372 U.S. 335 (1963), that have held that poor defendants charged with crime must be accorded legal assistance at public expense. Consider, in this regard. Justice Douglas's inclusion of Gideon on the list of Warren Court cases that Chief Justice Burger has expressed a desire to overrule. W. Douglas, The Court Years, 1939-1975 231 (1980).
Of the three justices now on the bench who participated in Sherbert, Justice Brennan wrote the Sherbert opinion, Justice Stewart concurred in the result, and Justice White v dissented.
35 98 U.S. 145 (1878).
36 98 U.S. at 166-67 (1878). A fascinating counterpoint to McRae in this regard is Fiedler v. Marumsco Baptist Church, No. 79-1556 (4th Cir. Oct. 14, 1980). In that case, a 14-year-old white girl was expelled from a parochial school on account of her having an "interracial romantic relationship" with a black classmate. When her father told an official of the defendant church that he had decided to take legal action, her sister was also expelled. The father then brought a civil rights action under 42 U.S.C. § 1981 and the thirteenth amendment of the U.S. Constitution. The church argued that interracial romantic relationships violate the tenets, doctrines, and beliefs of the church, and that the expulsions were therefore a matter of first amendment right. The district court agreed; the circuit court did not, finding that the beliefs in question were personal to the school's administrators. Perhaps the most fascinating aspect of this case is that the plaintiffs were represented by a cooperating attorney of the American Civil Liberties Union (which is among the organizations representing the McRae plaintiffs), and that the United Methodist Church (whose Women's Division is among the McRae plaintiffs) filed an amicus brief in support of the plaintiffs in Fiedler. Thus we have two organizations arguing in one case {McRae) that the government may not interfere with the free exercise of religion, and in another (Fiedler) that it is obligated to do so—or at least that it is obligated to judge whether the beliefs of certain people constitute bona fide religious tenets. The cases are different enough that the different approaches may be justified, but the situation certainly makes for an interesting spectacle.
37 410 U.S. 113(1973).
38 Id. at 162-63.
39 One health law professor has told this writer that Roe v. Wade should have been primarily a religious freedom decision.
40 98 U.S. 145 (1878). See text accompanying note 36 supra.
41 432 U.S. 464 (1977).
42 48 U.S.L.W. 4941, 4948 (1980). The Court cites, as an example of such a holding, James v. Valtierra, 402 U.S. 137 (1970). That case (which upheld California's requirement that no low-rent housing project be developed, constructed, or acquired by any state public body without the approval of a majority of those voting in a community election) in fact says nothing explicit about poverty not being a suspect classification. The dissent does, however, argue strongly that poverty is inherently suspect. A better reference would have been to Williams, Dandridge v. 397 U.S. 471 (1970).Google Scholar
43 A word should be said about the way in which the Court voted. The McRae majority consisted of three Nixon appointees (Burger, Powell, and Rehnquist), plus the remnants of the Warren Court minority (Stewart and White). On the other hand, the last of the Warren Court majority (Brennan and Marshall) found themselves in dissent. Consequently, McRae is yet another example of how Richard Nixon kept at least one promise—the promise to turn the Supreme Court around. It is thus puzzling—and some what disheartening—that some prominent journalists have found the Court to be "controlled" by "the center," as though the Warren Court had been under the control of a left-wing fringe. R. Woodward & S. Armstrong, The Brethern 444 (1979).