tag:theconversation.com,2011:/id/topics/scotus-16507/articlesSCOTUS – The Conversation2023-12-15T13:19:20Ztag:theconversation.com,2011:article/2193372023-12-15T13:19:20Z2023-12-15T13:19:20ZSandra Day O’Connor saw civics education as key to the future of democracy<p>Beyond her trailblazing role as the first woman appointed to the U.S. Supreme Court, Justice Sandra Day O’Connor considered <a href="https://www.icivics.org/">iCivics</a> – a civics education nonprofit founded after she retired from the court – to be her “<a href="https://www.icivics.org/our-founder">most important legacy</a>.”</p>
<p>“The practice of democracy is not passed down through the gene pool,” O’Connor <a href="https://www.govtrack.us/congress/bills/118/sres333/text">once stated</a>. “It must be taught and learned by each new generation.”</p>
<p>iCivics is the toolkit she assembled to do just that. Fulfilling O’Connor’s call to action, iCivics <a href="https://www.icivics.org/games">provides games</a> and activities designed to help students learn about American democracy. iCivics is predicated on getting students to actively apply what they’re learning through interaction and simulation. The website <a href="https://www.icivics.org/who-we-are">serves 9 million students annually</a>, in all 50 states.</p>
<p>O’Connor’s dedication to civics education was motivated by her keen awareness of its vital importance. <a href="https://www.forbes.com/sites/marianneschnall/2023/12/01/reflections-from-my-interview-with-trailblazing-supreme-court-justice-sandra-day-oconnor/?sh=6c18e3f356ff">She once noted</a>, “Without basic civic education, we cannot expect to preserve or improve our system of government.”</p>
<p>As <a href="https://joshuajansa.com/">researchers</a> who <a href="https://www.everingsmuth.com/">examine the impact of civics coursework</a>, we agree. The evidence shows that civics education generally – and the iCivics initiative specifically – has proven an effective tool for preparing citizens, especially when instructors get their students to actively engage with the material and one another.</p>
<p>One study found that elementary, middle and high school students <a href="https://www.researchgate.net/publication/264346878_The_Impact_of_iCivics_on_Students%27_Core_Civic_Knowledge">exhibited substantial growth in political knowledge</a> after interacting with iCivics for just 30 minutes twice per week.</p>
<figure class="align-center ">
<img alt="Two boys look at the screen of a digital tablet in a classroom." src="https://images.theconversation.com/files/565630/original/file-20231213-27-6nbt9c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/565630/original/file-20231213-27-6nbt9c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/565630/original/file-20231213-27-6nbt9c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/565630/original/file-20231213-27-6nbt9c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/565630/original/file-20231213-27-6nbt9c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/565630/original/file-20231213-27-6nbt9c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/565630/original/file-20231213-27-6nbt9c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Students gain more from active learning approaches.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/children-looking-at-tablet-together-in-classroom-royalty-free-image/1049271140?phrase=social+studies+class&adppopup=true">Klaus Vedfelt/DigitalVision via Getty Images</a></span>
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<p>While iCivics targets K-12 students, O’Connor considered <a href="https://www.forbes.com/sites/marianneschnall/2023/12/01/reflections-from-my-interview-with-trailblazing-supreme-court-justice-sandra-day-oconnor/?sh=6c18e3f356ff">the need for civics education to extend more broadly</a>. She once observed that polls have shown that <a href="https://www.forbes.com/sites/marianneschnall/2023/12/01/reflections-from-my-interview-with-trailblazing-supreme-court-justice-sandra-day-oconnor/?sh=2b1c945e56ff">only a third of the public could name the three branches of government</a>. “Compare that to the … nearly three-quarters who can name two of the Three Stooges, and the numbers are disheartening,” O’Connor stated.</p>
<h2>The quest for what works</h2>
<p>Like O’Connor, we are interested in identifying strategies for effective instruction. We study civics education at the college level. Specifically, we survey the thousands of students who take Introduction to American Government – a required general education and foundational civics education course -— each year at Oklahoma State University. We ask students to answer basic political knowledge questions at the beginning and end of each semester. We also ask students to assess their confidence in understanding politics and their ability to effectively participate.</p>
<p>While students who take Introduction to American Government <a href="https://doi.org/10.1080/15512169.2022.2097916">grow significantly</a> in their belief that they can understand and effectively engage with the political process, we find that – similar to the impact of iCivics activities – students experienced even more growth when their instructors used strategies that were actively engaging. These strategies include analyzing data and current events, group discussions and posting on online discussion boards.</p>
<p><a href="https://doi.org/10.1080/15512169.2015.1090905">Like others</a>, our analyses also show students gain knowledge about government and politics through civics coursework. Importantly, these outcomes and civics education more generally have been shown to be significant predictors of future political participation. This includes <a href="https://doi.org/10.1016/j.electstud.2017.11.005">regularly talking politics with peers</a>, <a href="https://doi.org/10.1016/j.jssr.2018.09.006">voting</a>, <a href="https://doi.org/10.1017/S104909650300221X">petitioning and protesting</a>.</p>
<p>Our research also uncovers that there is flexibility in how to deliver effective civics education. Online classes promote as much or greater gains for students. Additionally, instructors can use technology to ensure learning about democracy persists <a href="https://doi.org/10.1017/S1049096522001305">even if the class format must shift unexpectedly</a>, such as from in person to online.</p>
<p>Broader research from the <a href="https://doi.org/10.1111/j.0038-4941.2004.00269.x">middle</a>, <a href="https://doi.org/10.1007/s11109-008-9063-z">high school</a> and <a href="https://doi.org/10.1023/B:IHIE.0000047415.48495.05">college</a> levels, and <a href="https://doi.org/10.1017/S1049096502001233">across formats</a>, echoes these findings. Giving students opportunities to actively apply course material and engage with peers equips them with the knowledge and skills to be active citizens.</p>
<h2>Changing futures</h2>
<p>Civics education is especially useful for lifting students who did not grow up talking about politics and discussing its importance onto equal footing with those who did. <a href="https://doi.org/10.1017/S0003055414000227">Women</a> and <a href="https://doi.org/10.1017/S0003055416000368">racial and ethnic minorities</a>, for example, are on average less likely to be socialized by parents into learning about and taking part in politics. <a href="https://doi.org/10.1007/s11109-016-9341-0">Civics education can compensate</a> for <a href="https://doi.org/10.1207/S1532480XADS0604_7">these disparities</a>, creating a pathway for all to understand how government works and how they can take part.</p>
<p>O’Connor was committed to empowering and engaging young citizens through civics education. She <a href="https://parade.com/125604/davidgergen/30-sandra-day-oconnor-i-can-make-a-difference/">noted</a>, “We have a complex system of government. You have to teach it to every generation. We want young people to continue to be part of it. We need ’em more than ever.” </p>
<p>Though O’Connor made those comments in 2012, the need to encourage participation among younger generations persists. A recent <a href="https://iop.harvard.edu/youth-poll/46th-edition-fall-2023?utm_source=substack&utm_medium=email">poll</a> indicates that the number of young Americans planning to vote in 2024 may be lower than in the 2020 election.</p>
<p>With more and more young Americans <a href="https://qz.com/848031/harvard-research-suggests-that-an-entire-global-generation-has-lost-faith-in-democracy">questioning whether it is essential to live in a democracy</a>, O’Connor’s efforts to increase access to civics education continue to light a path forward on how to reinvigorate democracy in the U.S.</p><img src="https://counter.theconversation.com/content/219337/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The late Justice Sandra Day O'Connor’s iCivics curriculum has been shown to boost knowledge of the political process.Joshua Jansa, Associate Professor of Political Science, Oklahoma State UniversityEve Ringsmuth, Associate Professor of Political Science, Oklahoma State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2105872023-09-01T12:43:01Z2023-09-01T12:43:01ZSen. Mitch McConnell’s legacy is the current Supreme Court and a judiciary reshaped by his ‘calculated audacity’<figure><img src="https://images.theconversation.com/files/578744/original/file-20240228-22-5an3a8.jpeg?ixlib=rb-1.1.0&rect=35%2C21%2C4687%2C3122&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Senate Minority Leader Mitch McConnell departs the Senate chamber on February 28, 2024 in Washington, DC. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/senate-minority-leader-mitch-mcconnell-departs-the-senate-news-photo/2038738239?adppopup=true">Photo by Nathan Howard/Getty Images</a></span></figcaption></figure><p>Mitch McConnell, who announced on Feb. 28, 2024, that he would <a href="https://www.nytimes.com/2024/02/28/us/politics/mitch-mcconnell-senate.html">step down as the Senate GOP leader</a> later in the year, used his tenure as the longest-serving Senate leader of any party to <a href="https://www.politico.com/news/2020/09/28/senate-judiciary-staffs-up-for-barrett-fight-422595">remake the federal judiciary from top to bottom</a>. </p>
<p>His success could hardly have been predicted when Senate Republicans elected McConnell as their leader in 2006. For most of the 40-plus years I have watched McConnell, first as a reporter covering Kentucky politics and now as a <a href="https://ci.uky.edu/jam/faculty-directory/al-cross">journalism professor focused on rural issues</a>, he seemed to have no great ambition or goals, other than gaining power and keeping it. </p>
<p>He always cared about the courts, though. In 1987, after Democrats defeated Supreme Court nominee Robert Bork, <a href="https://www.pbs.org/wgbh/frontline/film/supreme-revenge/">McConnell warned</a> that if a Democratic president “sends up somebody we don’t like” to a Republican-controlled Senate, the GOP would follow suit. He fulfilled that threat in 2016, <a href="https://www.npr.org/2016/09/06/492857860/173-days-and-counting-gop-unlikely-to-end-blockade-on-garland-nomination-soon">refusing to confirm Merrick Garland</a>, Barack Obama’s pick for the Supreme Court. </p>
<p>Keeping that vacancy open helped elect Donald Trump. Two people could hardly be more different, but the taciturn McConnell and the voluble Trump have at least one thing in common: They want power. </p>
<p>Trump had exercised his power with what often seems like reckless audacity, but McConnell’s 36-year Senate tenure is built on his calculated audacity.</p>
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<a href="https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Trump points at McConnell in a crowd while shaking his hand" src="https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=431&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=431&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=431&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=541&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=541&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=541&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Trump and McConnell in February 2017.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-shakes-hands-with-senate-majority-news-photo/646462182?adppopup=true">Bill Clark/CQ Roll Call</a></span>
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<h2>McConnell’s political rise</h2>
<p>It was audacious, back in 1977, to think that a wonky lawyer who had been disqualified from his only previous campaign for public office could defeat a popular two-term county executive in Louisville. </p>
<p>McConnell ran anyway. </p>
<p>It was audacious to think that a Republican could get the local labor council to endorse him in that race, but he got it, by <a href="https://www.npr.org/transcripts/729957825">leading the members to believe he would help them get collective bargaining for public employees</a>. </p>
<p>McConnell won the race. He didn’t pursue collective bargaining.</p>
<p>Seven years later, it was audacious to think that an urbanite who wore loafers to dusty, gravelly county fairs and lacked a compelling personality could unseat a popular two-term Kentucky senator, especially when he trailed by <a href="https://www.mcclatchydc.com/news/politics-government/congress/article151298992.html">40 points</a> in August. But McConnell won. </p>
<p>As soon as he won a second term in 1990, McConnell started trying to <a href="https://www.nytimes.com/2019/01/22/magazine/mcconnell-senate-trump.html">climb the Senate leadership ladder</a>, facilitated in large measure by his willingness to be the point man on campaign finance issues, an area his colleagues feared. They reacted emotionally to this touchy issue; he studied it, owned it and moved higher in the leadership.</p>
<h2>Business, not service</h2>
<p>In politics, lack of emotion is usually a drawback. McConnell makes up for that by having command of the rules and the facts and a methodical attitude.</p>
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<a href="https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Black and white image of a younger Mcconnell" src="https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=414&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=414&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=414&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=520&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=520&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=520&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">McConnell in 1992.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/close-up-of-sen-mitch-mcconnell-r-ky-in-april-1992-news-photo/674220092?adppopup=true">Laura Patterson/CQ Roll Call via Getty Images</a></span>
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<p>The recording on his home phone once said, “This is Mitch McConnell. You’ve reached my home. If this call is about business, please call my office.”</p>
<p>Business. Not something like “my service to you in the United States Senate,” but “business.” </p>
<p>This lack of emotion keeps McConnell disciplined. I am not the only person he has told, “The most important word in the English language is ‘focus,’ because if you don’t focus, you don’t get anything done.”</p>
<p>Five years ago, I spoke to the <a href="https://louisville.edu/admissions/cost-aid/scholarships/mentored-scholarships/mcconnell">McConnell Scholars</a>, the political-leadership program he started at the University of Louisville. One thank-you gift was a letter opener bearing two words: focus and humility. The first word was no surprise, because of McConnell’s well-known maxim; the second one intrigued me.</p>
<p>The director of the program, Gary Gregg, says adding “humility” was his idea. But it fits the founder. With his studied approach and careful reticence, McConnell is the opposite of bombast, and that surely helped him gain the Republican leader’s job and stay there. He has occasionally described his colleagues as prima donnas who <a href="https://www.nytimes.com/2019/01/22/magazine/mcconnell-senate-trump.html">look in the mirror and see a president</a>, something he claims to have never done. </p>
<p>When the colleagues in your party caucus know you are focused on their interests and not your own, you can keep getting reelected leader, as McConnell has done without opposition every two years since 2006.</p>
<h2>McConnell’s Supreme Court</h2>
<p>McConnell’s caucus trusts him. When he saw Obama as an existential threat – someone who could bring back enough moderate Democrats to give the party a long-term governing majority – McConnell held the caucus together <a href="https://www.nytimes.com/2010/03/24/health/policy/24health.html">in opposition to Obamacare</a>, and Republicans used that as an issue to rouse their base in the 2010 midterm election.</p>
<p>Meanwhile, McConnell was working on the federal judiciary. <a href="https://www.nytimes.com/2018/08/22/magazine/trump-remaking-courts-judiciary.html">He and his colleagues slow-walked</a> and filibustered Obama’s nominees, requiring “aye” votes from 60 of the 100 senators to confirm each one. The process consumed so much time that then-Majority Leader Harry Reid abolished the filibuster for nominations, except those to the Supreme Court. </p>
<p>That sped up the process, allowing Obama to appoint 323 judges, <a href="https://www.brookings.edu/blog/fixgov/2018/06/04/senate-obstructionism-handed-judicial-vacancies-to-trump/">about as many</a> as George W. Bush. But Republicans’ additional delaying tactics still left 105 vacancies for Trump to fill.</p>
<p>When Democrats weakened the filibuster, McConnell <a href="https://www.nytimes.com/2013/11/22/us/politics/reid-sets-in-motion-steps-to-limit-use-of-filibuster.html">warned</a>, “You’ll regret this. And you may regret it a lot sooner than you think.”</p>
<p>Democrats may now concede that point. McConnell and Trump put nearly 200 judges on the federal courts, making them all the more a <a href="https://www.npr.org/2020/07/02/886285772/trump-and-mcconnell-via-swath-of-judges-will-affect-u-s-law-for-decades">white-male bastion of judicial conservatism</a>.</p>
<p>When <a href="https://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html">Justice Antonin Scalia died in February 2016</a> and McConnell said <a href="https://www.politico.com/story/2016/02/mitch-mcconnell-antonin-scalia-supreme-court-nomination-219248">the seat wouldn’t be filled until after the November election</a>, it was another case of calculated audacity.</p>
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<a href="https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Schumer holds a sign reading, 'The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.'" src="https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Sen. Chuck Schumer reminding McConnell of his ‘rule,’ September 2020.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/senate-minority-leader-chuck-schumer-holds-a-poster-with-a-news-photo/1275576995?adppopup=true">Alex Wong/Getty Images</a></span>
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<p>Democrats cried foul, but they were powerless to reverse his decision because Republicans stuck with him.</p>
<p>Trump’s 2016 victory preserved the Senate Republican majority, which then did away with the Supreme Court exception, allowing McConnell and his colleagues to install by simple majority vote the sort of Supreme Court justices they wanted: Neil Gorsuch, Brett Kavanaugh and <a href="https://www.cnn.com/2020/09/26/politics/amy-coney-barrett-supreme-court-nominee/index.html">Amy Coney Barrett</a>.</p>
<p>It is the Roberts Court, but it is also the McConnell Court.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/mitch-mcconnells-legacy-is-a-conservative-supreme-court-shaped-by-his-calculated-audacity-147062">article</a> originally published Oct. 1, 2020.</em></p><img src="https://counter.theconversation.com/content/210587/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Al Cross does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Mitch McConnell, who has announced he will step down from his role as Senate GOP leader, was an uncharismatic Kentucky lawyer who came to rule the Senate and remake the US Supreme Court.Al Cross, Professor and director emeritus, Institute for Rural Journalism, University of KentuckyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2083492023-07-03T11:53:21Z2023-07-03T11:53:21ZThe Colorado website designer’s win is one of dozens of federal cases where religious beliefs and LGBTQ+ rights have clashed – and the pattern might not be what you think<figure><img src="https://images.theconversation.com/files/534218/original/file-20230627-17-9zpqxh.jpg?ixlib=rb-1.1.0&rect=3%2C9%2C2114%2C1400&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Viewed over decades, the Supreme Court's record on religion-related cases is more complicated than recent headlines suggest.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/sunrise-royalty-free-image/657130668?phrase=supreme+court&adppopup=true">Phil Roeder/Moment via Getty Images</a></span></figcaption></figure><p>Does a Colorado designer’s belief that marriage is between one man and one woman merit an exemption to state law barring discrimination against LGBTQ+ people? On June 30, 2023, the Supreme Court <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">decided 6-3 that the answer is yes</a>: Requiring a conservative Christian business owner to create wedding websites for gay couples would violate the free speech clause of the First Amendment.</p>
<p>Creating a website constitutes an “expressive activity” protected by the First Amendment, Justice Neil Gorsuch <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">wrote in the majority opinion</a>, and Colorado’s anti-discrimination law would “compel an individual to create speech she does not believe.” Thus, designer Lorie Smith has the right to follow “her conscience about a matter of major significance” and refuse her services for same-sex weddings. </p>
<p><a href="https://www.oyez.org/cases/2022/21-476">303 Creative v. Elenis</a> is the latest of a trio of Supreme Court cases where conservative Christian plaintiffs have argued that they should have the constitutionally protected right to refuse service to LGBTQ+ people. In 2018, it was a Colorado baker <a href="https://www.oyez.org/cases/2017/16-111">refusing to bake a cake</a> for a gay wedding. In 2021, <a href="https://www.oyez.org/cases/2020/19-123">it was a Catholic adoption agency</a> arguing it should not be forced to place foster children with gay couples and thus be exempt from Philadelphia’s nondiscrimination policy.</p>
<p>These cases are no doubt important, signaling a broader trend on the current court, which has frequently <a href="https://theconversation.com/how-the-supreme-court-found-its-faith-and-put-religious-liberty-on-a-winning-streak-158509">ruled in favor of Christian plaintiffs</a> on high-profile cases, particularly when it comes to cases that also involve gender and sexuality – although the Colorado baker’s win was <a href="https://www.theatlantic.com/ideas/archive/2018/06/the-court-slices-a-narrow-ruling-out-of-masterpiece-cakeshop/561986/">a narrow one</a> that avoided broader questions about civil rights, free speech and free religious exercise.</p>
<p>The big-picture view, however, is more complicated.</p>
<p><a href="https://soc.unl.edu/emily-kazyak">As sociologists</a> of <a href="https://kelsyburke.com">religion and sexuality</a>, we have <a href="https://doi.org/10.1007/s13178-023-00812-4">analyzed every federal court case between 1990 to 2020</a> that involves religious beliefs and LGBTQ+ people’s rights – a total of 62 cases. From this analysis, we know that the ruling in 303 Creative LLC v. Elenis runs counter to legal patterns of the past 30 years. </p>
<p>The latest Supreme Court rulings make it seem as if cases that deal with plaintiffs’ faith are usually successful in federal courts. More broadly, however, <a href="https://press.princeton.edu/books/paperback/9780691180953/the-impossibility-of-religious-freedom">the opposite is true</a>. Throughout U.S. history, litigants have drawn from ideas about religious liberty to attempt to justify violating the law, whether related to taxes, child labor, desegregation or dress codes. Most of the time they lose, and cases related to LGBTQ rights <a href="https://link.springer.com/article/10.1007/s13178-023-00812-4">are no exception</a>. </p>
<h2>Three types of claims</h2>
<p>Cases that involve religious freedom can take many forms. We focused our analysis on three types: those based on <a href="https://www.law.cornell.edu/wex/free_exercise_clause">the free exercise clause</a> of the First Amendment; those about free speech, as in 303 Creative, that are also based on <a href="https://www.law.cornell.edu/wex/first_amendment">the First Amendment</a>; and religion claims citing <a href="https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964">Title VII of the Civil Rights Act</a>, which prohibits employment discrimination.</p>
<p><a href="https://doi.org/10.1007/s13178-023-00812-4">We found that</a> in only 21 of the 62 cases did a federal court side side with the religious litigant. What’s more, courts ruled in favor of the litigants’ specific religion-based legal claim – as opposed to some other element of their argument – in only three cases. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three women in coats wave as they walk away from a huge building with tall pillars." src="https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Lorie Smith, left, the owner of 303 Creative, prepares to speak outside the Supreme Court on Dec. 5, 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/lorie-smith-a-christian-graphic-artist-and-website-designer-news-photo/1245399675?adppopup=true">Kent Nishimura / Los Angeles Times via Getty Images</a></span>
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</figure>
<p><a href="https://doi.org/10.1017/lsi.2023.5">In our analysis</a>, cases focused on wedding-related services, like 303 Creative, were the most likely to have justices side with the party bringing forth a religion-based claim, or to remand the case for further proceedings. In cases related to employment, housing, incarceration, education or physical and mental health care, on the other hand, <a href="https://www.oyez.org/cases/2019/18-107">federal courts were unlikely</a> to side with religion-based claims.</p>
<p>The relative success of wedding-related cases points to a broader trend we observed. Over time, fewer cases dealt with plaintiffs’ opposition to LGBTQ+ identity and more on LGBTQ+ relationships, specifically same-sex marriage.</p>
<p>Take <a href="https://casetext.com/case/ward-v-polite">Ward v. Polite</a>, a 2012 case where a graduate student in a master’s counseling program requested “that she be allowed to refer gay and lesbian clients seeking relationship advice to another counselor,” even though she, according to case documents, “had no problem counseling gay and lesbian clients.” The university believed that Ward’s refusal to counsel gay and lesbian clients in relationships violated its code of ethics and expelled her from the program.</p>
<p>She <a href="https://www.nytimes.com/2012/02/04/us/when-counseling-and-conviction-collide-beliefs.html">sued the university</a>, claiming it had violated her right to freely exercise her religion. The 6th U.S. Circuit Court of Appeals criticized the university for not having an exception clause to its nondiscrimination policy, which students like Ward could have used to request to transfer a client, and remanded the case for additional proceedings.</p>
<h2>Not always the ‘usual story’</h2>
<p>Our findings also revealed that federal court cases about faith and sexual orientation often affirm a stereotype that <a href="https://barnard.edu/profiles/janet-jakobsen">gender scholar</a> <a href="https://nyupress.org/9781479846085/the-sex-obsession/">Janet Jakobsen</a> calls the “usual story” about religion and LGBTQ+ rights: that the two are in tension with one another. </p>
<p>In other words, even when the court doesn’t side with litigants whose cases are related to their faith, most lawsuits about these topics give the impression that religious beliefs endorse heterosexuality over any alternative. The majority of cases brought over the past 30 years – 50 of the 62 in our sample – were indeed brought by people who say their religious beliefs <a href="https://doi.org/10.1017/lsi.2023.5">oppose LGBT identities or relationships</a>.</p>
<p>Still, there are examples of plaintiffs who <a href="https://doi.org/10.1093/socrel/srab062">use religion-based claims to advance LGBTQ+ rights</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man holding a rainbow-striped flag waves it in front of an ornate building with pillars." src="https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A supporter of same-sex marriage waves a pride flag in front of the U.S. Supreme Court to celebrate the eighth anniversary of the Obergefell v. Hodges decision.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/same-sex-marriage-supporter-vin-testa-of-washington-dc-news-photo/1502430450?adppopup=true">Anna Moneymaker/Getty Images</a></span>
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<p>For instance, attorney Robin Joy Shahar <a href="https://www.casebriefs.com/blog/law/family-law/family-law-keyed-to-weisberg/alternative-families/shahar-v-bowers/">sued the attorney general of Georgia</a>, Michael Bowers, after he withdrew his job offer to her upon finding out that she married her partner, another woman, in a religious ceremony. The case, Shahar v. Bowers, was eventually decided in 1997, when <a href="https://www.washingtonpost.com/news/post-nation/wp/2018/02/15/he-was-convicted-of-a-sex-act-thats-no-longer-a-crime-years-later-hes-deemed-a-sex-offender/">sodomy laws were still on the books</a>, and long before U.S. states legally recognized same-sex marriages – a fact the court emphasized by putting quotation marks around every reference to Shahar’s marriage and wedding.</p>
<p>Shahar, who had held a Jewish wedding ceremony at her synagogue, argued that the attorney general had violated her right to freely exercise her religion, among other rights. But the U.S. Court of Appeals for the 11th Circuit sided with Bowers, reasoning that the interests of the government – in this case the attorney general’s office – outweighed Shahar’s individual rights. </p>
<p>Other litigants have integrated their religious beliefs or identity into federal court arguments, seeking to protect LGBTQ+ people and their rights. In our analysis, the court ruled against each of their religion-based claims.</p>
<h2>The road ahead</h2>
<p>Today, hours after the court’s decision was announced, it is too early to predict the consequences of the ruling. It’s worth noting, however, that the Supreme Court declined to consider <a href="https://www.law.cornell.edu/supct/cert/21-476">Smith’s claims that Colorado’s law violated the free exercise clause of the First Amendment</a>. In other words, they were willing to consider – and ultimately decided – that the law violated her right to create, or not create, content based on her religious beliefs. Yet they were not willing to consider whether the law impeded her ability to freely practice her faith.</p>
<p>In this way, the court did not overturn precedent related to other forms of religious freedom.</p>
<p>Still, as Justice Sonia Sotomayor noted <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">in her dissent</a> – joined by Justice Elena Kagan and Justice Ketanji Brown Jackson – this ruling leaves open the possibility that other religious business owners will claim their services are “expressive” acts of speech and thus refuse to serve LGBTQ+ people. </p>
<p>“Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">Sotomayor wrote</a>. “The law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment.”</p><img src="https://counter.theconversation.com/content/208349/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kelsy Burke receives funding from the National Science Foundation. </span></em></p><p class="fine-print"><em><span>Emily Kazyak receives funding from the National Science Foundation. </span></em></p>Two sociologists break down how cases related to plaintiffs’ beliefs and LGBTQ+ rights have fared in federal courts over several decades.Kelsy Burke, Associate Professor of Sociology, University of Nebraska-LincolnEmily Kazyak, Associate Professor of Sociology and Women's and Gender Studies, University of Nebraska-LincolnLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2070732023-07-01T00:03:38Z2023-07-01T00:03:38ZA business can decline service based on its beliefs, Supreme Court rules – but what will this look like in practice?<figure><img src="https://images.theconversation.com/files/535089/original/file-20230630-15-48437j.jpg?ixlib=rb-1.1.0&rect=9%2C15%2C2108%2C1393&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Designing for all couples -- or declining?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/cyber-love-royalty-free-image/522854467?phrase=wedding+rings+computer&adppopup=true">DawidMarkiewicz/iStock via Getty Images Plus</a></span></figcaption></figure><p>At issue in one of this year’s most highly anticipated Supreme Court cases, <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">303 Creative v. Elenis</a>, was what happens when someone’s free speech or beliefs conflict with others’ rights. Specifically, 303 Creative addressed whether a Colorado anti-discrimination law can require a designer who believes marriage is only between a man and a woman to create a wedding website for a same-sex couple.</p>
<p>Two years ago, the 10th Circuit Court of Appeals <a href="https://casetext.com/case/303-creative-llc-v-elenis-3">affirmed that the answer was “yes</a>.”</p>
<p>But on June 30, 2023, a bitterly divided Supreme Court <a href="https://www.oyez.org/cases/2022/21-476">reversed that judgment</a>, holding 6-3 that <a href="https://constitution.congress.gov/constitution/amendment-1/">the free speech clause of the First Amendment</a> prohibited state officials from requiring the designer to create a website that communicates a message with which she disagrees.</p>
<p>As <a href="https://udayton.edu/directory/education/eda/russo_charles.php">a professor of law</a> who pays particular attention to First Amendment issues involving freedom of religion and speech, I see the case highlighting tension between two competing fundamental interests – ones that clash routinely in 21st century America.</p>
<h2>Compelled speech?</h2>
<p>The underlying dispute involves graphic artist Lorie Smith, the founder and owner of a studio called <a href="https://303creative.com/about/">303 Creative</a>. According to court documents, Smith will work with clients of any sexual orientation. However, she will not create content that goes against her religious beliefs, such as “that marriage is a union between one man and one woman.”</p>
<p>Conflict arose when Smith challenged <a href="https://ccrd.colorado.gov/ccrd-home/regulatory-information">Colorado’s Anti-Discrimination Act</a>, under which it is discriminatory and illegal to refuse services to someone based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin or ancestry.” </p>
<p>In 2016, Smith unsuccessfully sued the members of <a href="https://www.denverpost.com/2016/09/21/colorado-lawsuit-says-law-promotes-same-sex-marriage/">the state’s Civil Rights Commission and Colorado’s attorney general</a>. She and her attorneys argued that creating a website counts as an act of speech, and so being required to prepare a same-sex wedding website would violate her First Amendment rights: The law would force her to speak, legally referred to as “compelled speech.”</p>
<p>Smith and her attorneys also claimed that requiring her to create a website would violate her First Amendment right to <a href="https://constitution.congress.gov/constitution/amendment-1/">the free exercise of religion</a>.</p>
<p>The <a href="https://casetext.com/case/303-creative-llc-v-elenis-1">federal trial court</a> in Colorado rejected Smith’s attempt to block enforcement of the anti-discrimination law in 2019. When she appealed, a split <a href="https://casetext.com/case/303-creative-llc-v-elenis-3">10th Circuit affirmed</a> that Smith could not refuse to create websites for same-sex weddings, even if it would have gone against her beliefs. Protecting diverse viewpoints, <a href="https://casetext.com/case/303-creative-llc-v-elenis-3">in the court’s opinion</a>, was a “good in and of itself,” but combating discrimination “is, like individual autonomy, ‘essential’ to our democratic ideals.” </p>
<p>In <a href="https://cases.justia.com/federal/appellate-courts/ca10/19-1413/19-1413-2021-07-26.pdf?ts=1627336853">a lengthy dissent</a>, the chief judge of the 10th Circuit focused on compelled speech. He criticized the panel for taking “the remarkable – and novel – stance that the government may force Ms. Smith to produce messages that violate her conscience.”</p>
<h2>SCOTUS speaks</h2>
<p>The Supreme Court agreed to hear Smith’s case but limited the issue to free speech, sidestepping the dispute over the free exercise of religion. The <a href="https://www.supremecourt.gov/docket/docketfiles/html/qp/21-00476qp.pdf">question before the court</a> was “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”</p>
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<a href="https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A small crowd of people in coats walk cheerfully down the steps of a building with large pillars." src="https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Lorie Smith, center in pink, walks out of the Supreme Court on Dec. 5, 2022, after the high court heard oral arguments in her case.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/lorie-smith-a-christian-graphic-artist-and-website-designer-news-photo/1245399590?adppopup=true">Kent Nishimura/Los Angeles Times via Getty Images</a></span>
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<p>Writing for the majority, Justice Neil Gorsuch noted that “First Amendment protections belong to all, not just to speakers whose motives the government finds worthy.” </p>
<p>Gorsuch reviewed the Supreme Court’s cases protecting the rights of individuals not to express themselves. In 1943’s <a href="https://www.law.cornell.edu/supremecourt/text/319/624">West Virginia Board of Education v. Barnette</a>, for example, the court declared that public officials could not compel students who were Jehovah’s Witnesses to salute the flag, because doing so violated their religious beliefs.</p>
<p>While noting the “vital role public accommodations laws play in realizing the civil rights of all Americans,” <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">Gorsuch reasoned</a> that Colorado could not “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” </p>
<p>Further, Gorsuch harshly criticized the dissenting justices’ argument that Colorado’s law focused on business owners’ conduct, not speech, contending that the dissent sidesteps a key question: whether a state can “force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”</p>
<p>Justice Sonia Sotomayor, <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">whose dissent was joined by Justice Elena Kagan and Justice Ketanji Brown Jackson</a>, lamented the majority’s decision as a time when there is “backlash to the movement for liberty and equality for gender and sexual minorities.” </p>
<p>Sotomayor then argued that under Colorado’s anti-discrimination law, Smith’s “freedom of speech <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">is not abridged</a> in any meaningful sense, factual or legal.” If Smith wants to “advocate the idea that same-sex marriage betrays God’s laws,” Sotomayor made it clear that she can. </p>
<p>Sotomayor went on to decry the ruling for symbolically “mark(ing) gays and lesbians for second-class status.” Denying services to same-sex couples “reminds LGBT people of a painful feeling that they know all too well,” she wrote. “There are some public places where they can be themselves, and some where they cannot.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Half a dozen somber-looking people stand at the front of a room during a press conference." src="https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Religious leaders and Colorado Attorney General Phil Weiser hold a press conference in Denver following the Supreme Court’s decision in 303 Creative LLC v. Elenis.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/kurt-kaufman-ministerial-associate-at-first-baptist-church-news-photo/1373397545?adppopup=true">Hyoung Chang/The Denver Post via Getty Images</a></span>
</figcaption>
</figure>
<h2>Questions ahead</h2>
<p>To see how 303 Creative’s impact plays out, it is worth closely watching the parts of the U.S. with anti-discrimination statutes in place. As Justice Gorsuch noted, about half of all states have laws like Colorado’s that “<a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">expressly prohibit discrimination</a> based on sexual orientation.” More specifically, <a href="https://www.lgbtmap.org/equality-maps/non_discrimination_laws/public-accommodations">22 states, plus the Virgin Islands and Washington, D.C.</a>, offer various forms of protections for LGBTQ+ individuals – including retail stories, restaurants, parks, hotels, doctors’ offices and banks.</p>
<p>I believe 303 Creative presents a challenge for society to come to grips with the tension between two fundamental interests.</p>
<p>One is the Supreme Court’s affirmation of Smith’s key argument: that requiring her to prepare websites that go against her religious beliefs would violate her First Amendment right to freedom of speech.</p>
<p>The other is the interest of same-sex couples in hiring the services they wish – and simply to be treated equally in the eyes of the law, on par with any other potential customers.</p>
<p>Ensuring both freedom of speech and civil rights requires good-faith efforts at respect – and respect is a two-way street. However, exactly what this looks like will likely be the cause of more litigation to come.</p><img src="https://counter.theconversation.com/content/207073/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A designer opposed to same-sex marriage argued that a Colorado anti-discrimination law would effectively force her to speak against her beliefs.Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2051122023-06-30T12:41:25Z2023-06-30T12:41:25ZMilitary academies can still consider race in admissions, but the rest of the nation’s colleges and universities cannot, court rules<figure><img src="https://images.theconversation.com/files/534925/original/file-20230629-25-jj8v31.jpg?ixlib=rb-1.1.0&rect=116%2C35%2C5820%2C3889&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A person protests outside of the Supreme Court in Washington, D.C., on June 29, 2023.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXSupremeCourtAffirmativeAction/3df7c369e0494252b2d9e333d079c0bf/photo?Query=affirmative%20action&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=642&currentItemNo=1">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p><em>In a 6-3 <a href="https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf">ruling</a> on Thursday, June 29, 2023, the U.S. Supreme Court <a href="https://www.nytimes.com/live/2023/06/29/us/affirmative-action-supreme-court">struck down the use of race in college admissions</a> at Harvard and the University of North Carolina, outlawing the use of race in college admissions in general. The Conversation reached out to three legal scholars to explain what the decision means for students, colleges and universities, and ultimately the nation’s future.</em></p>
<h2>Kimberly Robinson, Professor of Law at the University of Virginia</h2>
<p>Writing for the majority in a <a href="https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf">case that bans affirmative action in college admissions</a>, Chief Justice John Roberts wrote that such programs “unavoidably employ race in a negative manner” that goes against the Constitution.</p>
<p>The research, however, shows that the ban could potentially harm many college students and ultimately the United States. The reason this can be said with certainty is because in states where affirmative action has been banned, such as California and Michigan, <a href="https://www.chronicle.com/article/race-conscious-admission-bans">many selective state colleges and universities have struggled</a> to maintain the student body diversity that existed before affirmative action was banned.</p>
<p>Robust research shows how students who engage with students from different racial backgrounds <a href="https://doi.org/10.3102/0034654309352495">experience</a> <a href="https://muse.jhu.edu/pub/1/article/258117/pdf?casa_token=q8qNOOU6_RsAAAAA:ypmjnl3Bwxzo1r-NxasqzKkCcgfN-x_ijZFd-SL3awMASAjcR0wn9EkMPIOAzjUp01XBx5XWSA">educational benefits</a>, such as cognitive growth and development and creating new ideas. For those reasons, a substantial decline in enrollment for underrepresented minority students carries many repercussions. </p>
<p>It means, for instance, that many students at selective colleges will have far fewer opportunities to learn from and interact with students from different racial backgrounds.</p>
<p>The nation’s elite colleges, such as Harvard and the University of North Carolina, educate a <a href="https://www.tulanelawreview.org/pub/volume96/issue1/affirmative-action-and-the-leadership-pipeline">disproportionately high share</a> of America’s leaders. Those who don’t attend these selective schools are dramatically <a href="https://www.tulanelawreview.org/pub/volume96/issue1/affirmative-action-and-the-leadership-pipeline">less likely</a> to complete a graduate or professional program. This is because these selective schools carry certain advantages. For instance, students who attend them are statistically more likely to graduate and be admitted to professional and graduate programs.</p>
<p>That means for students from underrepresented groups who don’t get into selective colleges, the chances of getting an advanced degree – which often paves the way to leadership positions – will be even lower.</p>
<p>The decision may also affect the workplace. Research shows that in states that eliminated affirmative action, <a href="https://gap.hks.harvard.edu/impact-eliminating-affirmative-action-minority-and-female-employment-natural-experiment-approach">meaningful drops in workplace diversity</a> took place. Asian and African American women and Hispanic men experienced the most significant declines.</p>
<p>These shifts in elite college enrollment, leadership and workplaces will weaken long-standing efforts to dismantle the nation’s <a href="https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=4420&context=nclr">segregationist past</a> and the privilege that this segregationist past affords to <a href="https://www.routledge.com/Black-Wealth--White-Wealth-A-New-Perspective-on-Racial-Inequality/Oliver-Shapiro/p/book/9780415951678">wealth</a> and <a href="https://policy.bristoluniversitypress.co.uk/white-privilege">whiteness</a>.</p>
<p>To help mitigate these potential harms, selective colleges will have to devote their attention to limiting what I believe are the decision’s harmful impacts and reaffirming their commitment to diverse student bodies through all <a href="https://harvardlawreview.org/print/vol-130/fishers-cautionary-tale-and-the-urgent-need-for-equal-access-to-an-excellent-education/">lawful means</a>.</p>
<h2>Kristine Bowman, Professor of Law and Education Policy, Michigan State University</h2>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/534940/original/file-20230629-26-bekrzm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Protestors holding posters saying, 'Black Lives Matter' and 'Defend Diversity.'" src="https://images.theconversation.com/files/534940/original/file-20230629-26-bekrzm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534940/original/file-20230629-26-bekrzm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534940/original/file-20230629-26-bekrzm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534940/original/file-20230629-26-bekrzm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534940/original/file-20230629-26-bekrzm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534940/original/file-20230629-26-bekrzm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534940/original/file-20230629-26-bekrzm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People protest outside of the Supreme Court in Washington, D.C., on June 29, 2023.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtAffirmativeAction/de1a9f99d5854446b9283100babf7778/photo?Query=court%20affirmative%20action&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=328&currentItemNo=16">AP Photo/Jose Luis Magana</a></span>
</figcaption>
</figure>
<p>In striking down race-conscious admissions practices, the Supreme Court overturns the court’s <a href="https://www.oyez.org/cases/1979/76-811">1978 decision</a> that held that race-conscious admissions were constitutional.</p>
<p>This reversal was not unexpected, but it will have profound implications for building and maintaining diverse and inclusive colleges and universities, particularly among selective institutions. The <a href="https://doi.org/10.3102/0162373720904433">most effective way to enroll a diverse student body</a> – and achieve the educational and social benefits that come with it – is to consider race as a factor in admissions. In the 10 states that have had affirmative action bans in admissions, <a href="https://doi.org/10.3102/0162373720904433">diversity in selective institutions has declined</a>.
This remained true even as alternative strategies were employed to achieve racial diversity, such as targeting recruitment efforts and focusing more on socioeconomic status diversity.</p>
<p>Although the court does not say outright that institutions cannot pursue diversity, it is not clear what diversity-related goals, if any, could constitutionally support race-conscious admissions. The court states that the benefits of diversity that Harvard and UNC articulate are not sufficiently “measurable,” “focused,” “concrete” or “coherent.” “How many fewer leaders Harvard would create without racial preferences, or how much poorer the education at Harvard would be, are inquiries no court could resolve,” the court wrote.</p>
<p>And yet, as Justice Sotomayor’s dissent highlights, the majority also says that race-conscious admissions with a “focus on numbers” or particular “numerical commitments” are also unconstitutional.</p>
<p>The opinion did not go as far as it could have in restricting the consideration of race. Institutions can still consider what a student’s comments about their racialized experiences reveal about their characteristics, such as “courage,” “determination” or “leadership.”</p>
<p>This provides a way for institutions to consider how race has impacted a student’s life. Although this unfairly places the burden on students of color to write about their racialized experience, it is arguably lighter than the burden that would have been borne if the court had attempted to prohibit consideration of such experiences. </p>
<p>Furthermore, efforts to pursue diversity through other means remain lawful. These alternative means include <a href="https://journals.sagepub.com/stoken/default+domain/UH4YSS3QHRCBY2VJEKPT/full">increasing attention to socioeconomic status</a>, making campus communities more inclusive. It also involves checking whether students are passing classes and graduating at the same rate regardless of race. </p>
<p>Research <a href="https://doi.org/10.3102/0162373720904433">hasn’t shown</a> that these efforts will result in as much diversity at selective colleges as race-conscious college admissions. These efforts, however, now stand as a critical way forward to keep America’s elite colleges and universities diverse.</p>
<h2>Vinay Harpalani, Associate Professor of Law, University of New Mexico</h2>
<p>Although the court struck down the use of race in college admissions – as predicted by many experts and observers – the court left room for one narrow exception.</p>
<p>The majority opinion stated in a brief footnote that its ruling does not apply to race-conscious admissions at the nation’s military academies, such as West Point or the Naval Academy. </p>
<p>This issue had come up at oral arguments. When articulating the U.S. government’s position, Solicitor General Elizabeth Prelogar raised the point that the military may have compelling interests beyond those that universities have. Specifically, the U.S. government argued that a racially diverse military officer corps was necessary for national security. In response, Chief Justice Roberts briefly noted the possibility of a military academy exception. This was not lost in his ruling.</p>
<p>The majority opinion stated that there could be “potentially distinct interests that the military academies may present.” Because the academies were not parties to these cases, the court did not directly address this issue and left it unsettled. </p>
<p>This was not the first time that the military influenced the court’s view of race-conscious admissions. Twenty years ago, national security interests played a significant role in the majority opinion in <a href="https://www.oyez.org/cases/2002/02-241">Grutter v. Bollinger</a>.</p>
<p>Citing the amicus brief of former military leaders, Justice Sandra Day O’Connor’s majority opinion in the Grutter case noted that diverse military leadership was “essential to the military’s ability to fulfill its principle mission to provide national security.” She found that “[i]t requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.”</p>
<p>In its latest rulings, the court left alone O'Connor’s claim that diverse military leadership is essential to national security, but it soundly rejected her view that diversity can justify race-conscious admissions at the nation’s colleges and universities.</p>
<p>The military is not the only place where the court has noted that security interests can justify use of race. The court also cited a 2005 ruling, Johnson v. California, where the justices held that prison officials could temporarily segregate prisoners by race to prevent violence. </p>
<p>It seems that the court is willing to uphold use of race when government power is at stake – as with the military and law enforcement. But it will not do so for the education of America’s citizenry.</p><img src="https://counter.theconversation.com/content/205112/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Three legal experts weigh in on what the Supreme Court’s ban on race in college admissions means for students, colleges and universities, and the nation’s future.Kristine Bowman, Professor of Law and Education Policy, Michigan State UniversityKimberly Robinson, Professor of Law, Professor of Law, Education and Public Policy, University of VirginiaVinay Harpalani, Associate Professor of Law and Henry Weihofen Professor, University of New MexicoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2041722023-04-24T12:26:56Z2023-04-24T12:26:56ZHow will the Supreme Court’s decision on mifepristone affect abortion access? 4 questions answered<figure><img src="https://images.theconversation.com/files/522387/original/file-20230421-26-8fh4pq.jpg?ixlib=rb-1.1.0&rect=44%2C29%2C5000%2C3263&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The legal battle over mifepristone could have far-reaching effects on reproductive health care.
</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AbortionPill/90b940844e254f1d9369d4e5430eca71/photo?Query=mifepristone&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=125&currentItemNo=2">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p><em>On April 21, 2023, the U.S. Supreme Court ruled that the abortion pill mifepristone, which is used in more than half of all abortions in the U.S., could <a href="https://www.nytimes.com/live/2023/04/21/us/abortion-pill-supreme-court">remain accessible without restrictions</a> – at least for now. The decision is temporary, however, buying time as an appeals court weighs the challenge to mifepristone brought by a Texas judge in early April 2023.</em></p>
<p><em>That ruling <a href="https://theconversation.com/anti-mifepristone-court-decisions-rely-on-medical-misinformation-about-abortion-and-questionable-legal-reasoning-203742">blocked the use of the drug in medication abortions</a> and sought to remove it from the market altogether, questioning its safety. Days later, a U.S. appeals court <a href="https://www.npr.org/2023/04/13/1169217172/abortion-pill-mifepristone-ruling-texas-judge">reversed the suspension on mifepristone</a> but placed tighter restrictions on it, including preventing it from being sent through the mail.</em> </p>
<p><em>The Conversation asked twin sisters <a href="https://scholar.google.com/citations?user=bNJTbmMAAAAJ&hl=en">Jamie Rowen</a>, a legal scholar, and obstetrician and gynecologist <a href="https://www.ucsfhealth.org/providers/dr-tami-rowen">Tami Rowen</a> to put into perspective what the Supreme Court’s decision means for access to the drug moving forward and how it came under legal scrutiny to begin with.</em> </p>
<h2>1. What led up to the Supreme Court’s ruling on mifepristone?</h2>
<p>In September 2022, several groups of anti-abortion doctors <a href="https://adflegal.org/sites/default/files/2022-11/Alliance-for-Hippocratic-Medicine-v-FDA-2022-11-18-Complaint.pdf">sued the Food and Drug Administration</a>, arguing that they were harmed because the FDA’s 2000 approval of mifepristone was flawed and that it did not adequately test the drug for safety, among other claims. The plaintiffs also claimed harm from the FDA’s 2016 and 2021 changes that lifted several restrictions on how the drug could be used or administered. </p>
<p>The doctors brought the case in Texas, where a federal district judge ordered that, while the case was pending, mifepristone should be off the market. </p>
<p>The FDA appealed to the 5th Circuit, asking it for an emergency “stay,” or a hold on, the district court’s order. The 5th Circuit ordered that, while the case is being decided, mifepristone can be on the market but only with its original restrictions from 2000. Under this order, mifepristone could only be used up to seven weeks of pregnancy and required an in-person visit and prescription from a doctor. </p>
<p>The FDA, along with mifepristone’s manufacturer Danco Laboratories, immediately asked the Supreme Court to stay the 5th Circuit’s order. Supreme Court <a href="https://www.supremecourt.gov/publicinfo/reportersguide.pdf">stays are granted</a> when at least five justices agree that the applicants – in this case the FDA and Danco – are likely to succeed, among other considerations.</p>
<p>The majority did not explain its decision in favor of the FDA and Danco. The <a href="https://www.nytimes.com/interactive/2023/04/21/us/23-supreme-court-order.html">two dissents</a> – from Samuel Alito and Clarence Thomas – provide little insight into how the different justices might rule on the case if they decide to review the 5th Circuit’s forthcoming opinion. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/qCwUuphh_A0?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">The Supreme Court ruling provided at least temporary relief to many providers who view mifepristone as the gold standard for abortion care.</span></figcaption>
</figure>
<h2>2. What comes next in the courts?</h2>
<p>The Supreme Court’s decision means that mifepristone will remain available until there is a final decision in this case. For now, the case returns to the 5th Circuit. Depending on the outcome of that case, either the plaintiffs or the defendants may ask the Supreme Court to hear the case. If the Supreme Court decides to hear the case, then the final decision on whether mifepristone should be taken off the market or have stricter requirements for use will come from the Supreme Court. If not, the final decision will come from the 5th Circuit. </p>
<p>Although the 5th Circuit is <a href="https://www.ca5.uscourts.gov/oral-argument-information/court-calendars/Details/1661/">scheduled to hear the case on May 17, 2023</a>, there is no fixed time by which it must make its decision. In short, it will likely take at least a year for the case to be decided. Regardless of these lower court decisions, the fact that at least five justices chose to stay the 5th Circuit’s emergency order suggests that the Supreme Court will want to make the final determination in this case.</p>
<h2>3. What does this mean for abortion access moving forward?</h2>
<p>The Supreme Court’s decision to preserve full access to mifepristone until the case concludes leaves the FDA’s current rules in place. These rules allow mifepristone to be administered up to 10 weeks of pregnancy without an in-person visit to a clinic or hospital, through the mail and by a certified pharmacy as an alternative to a doctor’s prescription. </p>
<p>Given the legal uncertainty and the amount of time it takes for a case like this to conclude, the Supreme Court’s April 21, 2023, decision enables ongoing access to mifepristone for the foreseeable future. Roughly 90,000 medication abortions are <a href="https://www.guttmacher.org/fact-sheet/unintended-pregnancy-and-abortion-northern-america">performed annually in the U.S.</a>, the vast majority of which rely on mifepristone as part of a two-medication regimen that also includes the drug misoprostol. </p>
<p>Mifepristone <a href="https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/questions-and-answers-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation">blocks the hormone progesterone</a>, which is needed for a pregnancy to continue. Misoprostol, which is approved for use in the <a href="http://www.accessdata.fda.gov/drugsatfda_docs/label/2002/19268slr037.pdf">treatment of gastric ulcers</a>, also causes uterine contractions and <a href="https://www.acog.org/clinical/clinical-guidance/practice-bulletin/articles/2020/10/medication-abortion-up-to-70-days-of-gestation">ends the pregnancy</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Extended hand holding two bottles of abortion pills, one mifepristone and the other misoprostol." src="https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Mifepristone is used in concert with misoprostol in the two-pill regimen. Misoprostol can also be used by itself in a one-pill medication abortion.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/MedicationAbortionPillsExplainer/53c242048271405bb7851a498ce5ad5c/photo?Query=mifepristone&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=125&currentItemNo=32">AP Photo/Charlie Neibergall</a></span>
</figcaption>
</figure>
<p>If the ultimate decision is in favor of the plaintiff doctors, the effects on pregnant people could be felt immediately. Taking mifepristone off the market until the FDA makes safety findings that are sufficient to the court, or restricting access to it through additional requirements, would lead people seeking medication abortions to use a misoprostol-only regimen or to seek surgical abortions. Though safe and effective, the misoprostol-only alternative would lead to <a href="https://doi.org/10.1016/j.contraception.2010.09.002">higher rates of incomplete abortions</a> that require additional, usually surgical, intervention. These procedures would exacerbate harms to those electing or experiencing abortion, <a href="https://doi.org/10.1111/aogs.13788">including risks to subsequent pregnancies</a>. </p>
<p>Likewise, forcing people to delay their abortions imposes numerous health risks. Even Supreme Court justices ambivalent about legal rights to abortion have <a href="https://www.reuters.com/article/us-usa-court-abortion-idUKKCN0W40BZ">expressed a desire</a> for abortions to occur as early as possible. </p>
<p>Limiting access to mifepristone could have additional harmful effects. Mifepristone also helps women complete a miscarriage at a <a href="https://doi.org/10.1016/S0140-6736(20)31788-8">much higher success rate</a> than the standard medical regimens that do not use mifepristone, sparing the risk of a surgical procedure and complications if the pregnancy remains in the uterus. </p>
<p>For now, the Supreme Court has created a buffer to help reduce such obstacles and adverse events while the lower courts, and likely the Supreme Court itself, decide the case.</p>
<h2>4. What are the implications for other medications?</h2>
<p>The Supreme Court did not explain whether it thinks the plaintiffs will be successful in their argument that the FDA should not have approved mifepristone in 2000 or changed the rules around its use in subsequent years.</p>
<p>When questioning an administrative agency, such as the FDA, a court asks whether the regulation was “arbitrary and capricious.” The 5th Circuit agreed with the district court that the 2016 regulation change was arbitrary and capricious because there was no study showing the effects of removing multiple restrictions on the medication at once. The FDA did review multiple studies that <a href="https://www.supremecourt.gov/DocketPDF/22/22A901/263483/20230414093601611_SCOTUS%20Stay%20Application%204-14-23%20Final.pdf">showed lifting these individual restrictions</a> was indeed <a href="https://doi.org/10.1097/aog.0000000000004082">safe for those taking mifepristone</a>. </p>
<p>Second-guessing the agency’s scientific determination in this way challenges the nuts and bolts of the FDA’s process and certainty in the drug manufacturing market.
This is particularly true for medicine that may have higher risks but can be lifesaving for patients. Undermining the FDA’s authority could also carry over to controversial medications like the COVID-19 vaccine or even the <a href="https://www.cancer.gov/news-events/cancer-currents-blog/2021/hpv-vaccine-parents-safety-concerns">vaccine against human papillomavirus, or HPV</a>, the most <a href="https://www.womenshealth.gov/a-z-topics/human-papillomavirus#">common sexually transmitted infection</a> in the U.S. Given parental concerns about vaccine safety and the belief that making sex medically safer for young people encourages them to have sex, the HPV vaccine <a href="https://journalofethics.ama-assn.org/article/hpv-vaccine-controversy/2012-01">has faced heightened scrutiny</a> from vaccine opponents about its safety record. </p>
<p>Leaders from across the <a href="https://www.nytimes.com/2023/04/20/opinion/abortion-pill-case-supreme-court.html">scientific, pharmacologic and business world</a> have sounded the alarm at the implications of these decisions on approved drugs and those in development. </p>
<p>Finally, the legal wrangling over mifepristone will no doubt affect ongoing research into the many potential uses of this medication beyond abortion. These legal challenges <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1173426/">delayed the introduction of mifepristone</a> to the U.S. market decades ago, <a href="https://www.ncbi.nlm.nih.gov/books/NBK234199/">and they continue to impair</a> studies on mifepristone’s potential to help prevent certain cancers, uterine infections and other illnesses affected by progesterone. </p>
<p>For now, the Supreme Court has put off a decision that could profoundly change the regulation of medicines in the U.S.</p><img src="https://counter.theconversation.com/content/204172/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jamie Rowen receives funding from National Science Foundation and Humanity United.</span></em></p><p class="fine-print"><em><span>Tami S. Rowen does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court’s ruling on mifepristone keeps the drug accessible for now, but its future is still in limbo.Jamie Rowen, Associate Professor of Legal Studies and Political Science, UMass AmherstTami S. Rowen, Associate Professor of Obstetrics, Gynecology and Gynecologic Surgery, University of California, San FranciscoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2035412023-04-17T12:44:43Z2023-04-17T12:44:43ZPlans for religious charter school, though rejected for now, are already pushing church-state debates into new territory<figure><img src="https://images.theconversation.com/files/520120/original/file-20230411-24-1a1qsx.jpg?ixlib=rb-1.1.0&rect=9%2C9%2C2106%2C1398&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Would religious charter schools be constitutional? More advocates are pushing to find out.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/praying-together-in-a-bible-study-royalty-free-image/505827292?phrase=god%20school&adppopup=true">FatCamera/E+ via Getty Images</a></span></figcaption></figure><p><em>An updated version of this article was published on June 7, 2023. <a href="https://theconversation.com/oklahoma-oks-the-nations-first-religious-charter-school-but-litigation-is-likely-to-follow-207103">Read it here</a>.</em></p>
<p>U.S. courts have long wrestled with the extent to which government funding can be used at private religious schools. School-choice advocates <a href="https://theconversation.com/state-funds-for-students-at-religious-schools-supreme-court-says-yes-in-maine-case-but-consequences-could-go-beyond-184618">have won key cases at the Supreme Court</a> in recent years, opening up more ways for public dollars to support faith-based education. But Oklahoma <a href="https://www.reuters.com/world/us/oklahoma-eyes-first-us-religious-charter-school-after-supreme-court-rulings-2023-04-06/">pushed the debate into unchartered territory</a> this spring with a proposal for a school that would have been the first of its kind: a Catholic charter, primarily paid for by taxpayers.</p>
<p>On April 11, 2023, the five-person board responsible for approving Oklahoma charters unanimously voted <a href="https://www.washingtonpost.com/education/2023/04/12/oklahoma-religious-charter-school-catholic/">to reject the proposal</a>, due to concerns about its governance structure and plans for special education students, <a href="https://www.oklahoman.com/story/news/education/2023/04/11/oklahoma-statewide-virtual-charter-school-board-rejects-catholic-school-vote/70100040007/">among other issues</a>. However, it gave organizers 30 days to <a href="https://www.koco.com/article/oklahoma-state-board-rejects-proposal-public-catholic-charter-school/43570335">revise the proposal and try again</a>.</p>
<p>Charter schools, which are publicly funded but generally run by independent organizations, have attracted ardent fans and foes <a href="https://www.npr.org/2012/09/02/160409742/from-a-single-charter-school-a-movement-grows">since they started in the early 1990s</a>. Yet the key question in this case is not whether a charter would help or harm local education, but whether explicitly religious instruction at charter schools is constitutional, given <a href="https://constitution.congress.gov/constitution/amendment-1/">the First Amendment’s</a> protections against government establishment of religion.</p>
<p>In late 2022, the then-attorney general of Oklahoma <a href="https://www.oklahoman.com/story/news/education/2022/12/02/oklahoma-ag-releases-opinion-on-religious-charter-schools/69695429007/">argued that</a> a state law barring faith-based charter schools was actually unconstitutional. The new attorney general who took office in January 2023 <a href="https://kfor.com/news/local/ag-drummond-rescinds-oconnor-era-opinion-on-religious-institution-charter-schools/">soon rescinded the opinion</a>, leaving the charter school proposal in legal limbo – and making it even more likely to wind up at the Supreme Court if the school board eventually approves the charter.</p>
<h2>Recent trend</h2>
<p>Advocates of <a href="https://www.the74million.org/article/analysis-opening-the-door-to-faith-based-charter-schools/">expanding public funding to faith-based schools</a> were encouraged by three recent Supreme Court cases that upheld greater aid to their students. All three of these cases relied on a legal idea <a href="https://www.worldcat.org/title/872266049">I have written about</a> called the “child benefit test.” Essentially, according to this concept, it is constitutional under some circumstances to provide public funds to students who attend faith-based private schools, or their parents – but not directly to the schools.</p>
<p>The first of these decisions, 2017’s <a href="https://www.law.cornell.edu/supremecourt/text/15-577">Trinity Lutheran Church of Columbia v. Comer</a>, dealt with a private Christian preschool that was denied public grants to update its playground. School administrators sued, arguing that to deny generally available funding constituted religious discrimination, in violation of the First Amendment’s protections for freedom of religion. The high court agreed.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit speaks in front of a crowd in front of the Supreme Court, with people holding up balloons that spell out 'fair play' behind him." src="https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=436&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=436&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=436&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=548&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=548&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=548&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Faith & Freedom Coalition Chairman Ralph Reed speaks in front of the Supreme Court before arguments in Trinity Lutheran Church of Columbia v. Comer.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/faith-freedom-coalition-chairman-ralph-reed-speaks-during-a-news-photo/670245268?adppopup=true">Mark Wilson/Getty Images</a></span>
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<p>Three years later, <a href="https://www.law.cornell.edu/supremecourt/text/18-1195">Espinoza v. Montana Department of Revenue</a> further opened up government aid to private religious school pupils, relying on the Trinity Lutheran decision. A 5-4 majority ruled that Montana’s tax credit program for parents sending their children to independent schools must apply even if those schools are faith-based.</p>
<p>In 2022, the Court extended this perspective in a case from Maine, <a href="https://www.law.cornell.edu/supremecourt/text/20-1088">Carson v. Makin</a>. Maine, with its low population density, pays parents in areas lacking their own public schools to either transport their children to nearby public schools or a secular private school. The Supreme Court found that <a href="https://theconversation.com/state-funds-for-students-at-religious-schools-supreme-court-says-yes-in-maine-case-but-consequences-could-go-beyond-184618">this program should apply</a> to parents without a local public school who wish to send their child to a religious school, as well.</p>
<h2>Rethinking church and state?</h2>
<p>By expanding the boundaries of permissible aid, these three cases have boosted proponents’ hopes for even greater public funding for private faith-based schools – and now, with the charter proposal, hopes that there might be a path ahead for public religious schools, entirely paid for with taxpayer money. Yet, it is important to keep in mind what likely prompted these changes in the first place: new faces on the Supreme Court. A majority of today’s justices tend to favor an “<a href="https://www.mtsu.edu/first-amendment/article/825/accommodationism-and-religion#:%7E:text=Accommodationism%20rests%20on%20the%20belief,or%20government%20hostility%20toward%20religion.">accommodationists</a>” interpretation of the First Amendment, meaning they largely reject the idea that it demands a “<a href="https://www.law.cornell.edu/wex/separation_of_church_and_state">wall of separation</a>” between church and state, so long as the government is not privileging one faith over another. </p>
<p>Nevertheless, the parameters of the “child benefit test” often used to justify greater public funding has been evolving for years. The concept – which is one that legal scholars use to describe the Supreme Court’s arguments, not a term the court has used itself – first emerged in a 1947 dispute from New Jersey, <a href="https://www.law.cornell.edu/supremecourt/text/330/1">Everson v. Board of Education</a>. In that case, the court upheld a state statute that allowed local school boards to transport students to faith-based schools – mostly Roman Catholic ones – reasoning that the students, not the schools themselves, were the primary beneficiaries of state aid.</p>
<p>In another illustrative case, 2002’s <a href="https://www.law.cornell.edu/supct/html/00-1751.ZO.html">Zelman v. Simmons-Harris</a>, the Supreme Court allowed parents whose children attended Cleveland’s public school system, which was then failing state standards, to use public vouchers to attend faith-based schools. A majority of justices upheld the program’s constitutionality because, again, students were the primary beneficiaries, not the religious schools themselves. Moreover, students attended these schools as a result of their parents’ free choices, not because doing so was required by the state.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two rows of people in black robes pose for a formal portrait in front of red velvety curtains." src="https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=413&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=413&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=413&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=519&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=519&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=519&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A changing court means changing interpretations.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/justices-of-the-us-supreme-court-pose-for-their-official-news-photo/1243795466?adppopup=true">Olivier Douliery/AFP via Getty Images</a></span>
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</figure>
<h2>Eyes on Oklahoma</h2>
<p>Now, in what may be the largest expansion of the child benefit test, legislators in various states are considering laws to <a href="https://www.washingtonpost.com/education/2023/02/08/school-choice-vouchers-private-religious-school-huckabee-sanders/">expand how parents can participate in public education fund programs</a> even if their children attend private religious schools, such as by broadening voucher or tax-credit programs. The Oklahoma proposal, however, had been the first to consider establishing a charter school with religious instruction and standards. </p>
<p><a href="https://www.britannica.com/topic/charter-school">Charters</a>, which trace their origins to Minnesota in 1991, are publicly funded and part of local school districts, yet free from many regulations, such as standards about curricular content and teacher qualifications. The idea of <a href="https://fordhaminstitute.org/national/commentary/why-not-religious-charter-schools">faith-based charters</a> has attracted proponents for more than 20 years, but they have had little success. If the proponents of the Catholic proposal in Oklahoma reapply to the school board and eventually succeed, it would likely encourage similar approaches elsewhere.</p>
<p>If states authorize faith-based charters, the new schools will likely be a boon to their religious groups and facilitate more students’ ability to attend. Proponents of charters, whether traditional or faith-based, support them as part of the larger school choice movement that seeks to give parents in failing districts opportunities to move their children into better schools without paying private school tuition.</p>
<p>Nevertheless, faith-based charters are likely to raise new headaches for their supporters, too. Charters are largely exempt from some state standards, but not all, and faith-based schools that converted into charters could be subject to greater government oversight about issues such as policies on LGBTQ+ students and staff – <a href="https://hechingerreport.org/supreme-court-ruling-brings-an-altered-legal-landscape-for-school-choice/">a longtime sticking point</a> – or having to accept <a href="https://www.edweek.org/leadership/charter-schools-more-likely-to-ignore-special-education-applicants-study-finds/2018/12">students with disabilities</a>, just as all public schools do.</p>
<p>While this legal battle is just heating up, it has the potential to reshape public education as we have known it.</p><img src="https://counter.theconversation.com/content/203541/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Using public funds to support students at private religious schools is one thing, but establishing faith-based institutions within public districts is another.Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1984992023-02-17T13:25:38Z2023-02-17T13:25:38ZHow far must employers go to accommodate workers’ time off for worship? The Supreme Court will weigh in<figure><img src="https://images.theconversation.com/files/509569/original/file-20230211-20-53o7ir.jpg?ixlib=rb-1.1.0&rect=15%2C9%2C2093%2C1403&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The case stems from USPS' deal with Amazon to deliver on Sundays.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/here-comes-the-mailman-royalty-free-image/172141834?phrase=usps%20truck&adppopup=true">mcdomx/E+ via Getty Images</a></span></figcaption></figure><p>Imagine you own a business with a few dozen employees. One, who is Muslim, asks if she can use a meeting room a few times a day for brief prayers – <a href="https://www.islamic-relief.org.uk/resources/knowledge-base/five-pillars-of-islam/">one of the five pillars of Islam</a>. Another, who observes the Jewish Sabbath, says he cannot work on Saturdays. Yet another, a Christian, requests to no longer work on Sundays, one of the shop’s busier days. </p>
<p>The U.S. Supreme Court will soon address the extent to which employers must accommodate employees, if at all, in similar circumstances.</p>
<p><a href="https://www.eeoc.gov/religious-discrimination">A far-reaching federal statute, Title VII</a>, requires employers to make “reasonable accommodations” for the religious beliefs and practices of employees. Yet what exactly that means has been unclear for decades. This issue comes to a head on April 18, 2023, when the Supreme Court will hear oral arguments in <a href="https://www.scotusblog.com/case-files/cases/groff-v-dejoy/">Groff v. DeJoy</a>. Gerald Groff, a Christian postal worker, quit and sued the U.S. Postal Service, alleging it failed to accommodate his religious obligation not to work on Sundays.</p>
<p><a href="https://www.supremecourt.gov/docket/docketfiles/html/public/22-174.html">The case</a>, which could have wide-reaching impact, is focused on two questions. The first is whether the court should abandon <a href="https://supreme.justia.com/cases/federal/us/432/63/">an existing standard</a> that says employers can refuse religious accommodations that would impose more than a minimum, or “de minimis,” cost on their businesses.</p>
<p>Second, the court will decide whether an employer may prove that <a href="https://www.eeoc.gov/religious-discrimination">a religious accommodation</a> imposes an “undue hardship” by showing the burden it imposes on other workers, rather than the business itself.</p>
<h2>Sunday deliveries</h2>
<p>Groff’s “religious beliefs dictate that Sunday is meant for worship and rest,” according to <a href="https://law.justia.com/cases/federal/appellate-courts/ca3/21-1900/21-1900-2022-05-25.html">court documents</a>. He went to work for the USPS in Pennsylvania in 2012. Controversy began a year later, when USPS <a href="https://www.usatoday.com/story/tech/2013/11/11/amazon-sunday-delivery-usps/3479055/">signed an agreement</a> with the online retail giant Amazon to make deliveries throughout the week, including on Sundays. The success of Sunday deliveries <a href="https://casetext.com/case/groff-v-dejoy">was critical</a> to the postal service, according to court filings.</p>
<p>Groff was initially exempted from working on his Sabbath, as long as he could get someone to cover his shifts. However, supervisors told him that he would have to be available during the peak holiday season.</p>
<p>Groff then transferred to another post office in the region that did not deliver on Sundays. However, it eventually began to, and Groff did not report to work on at least 24 Sundays. Also, he rejected the postmaster’s offer to permit him to attend religious services on Sunday mornings and report to work afterward, an accommodation similar to what the postmaster provided to other employees.</p>
<p>Groff contacted the Equal Employment Opportunity Commission, which agreed that, <a href="https://www.law.cornell.edu/wex/prima_facie#:%7E:text=A%20prima%20facie%20case%20is,rebutted%20by%20the%20other%20party.">at first appearance</a>, it looked as though he might have had a claim for failure to accommodate but was not subjected to discrimination.</p>
<p>After facing discipline and workplace tension, and having filed two more complaints with the commission, Groff resigned in January 2019, alleging that officials had failed to accommodate his religious beliefs. </p>
<figure class="align-center ">
<img alt="A person walks while holding two packages under his arm." src="https://images.theconversation.com/files/510100/original/file-20230214-22-5ou0k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/510100/original/file-20230214-22-5ou0k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/510100/original/file-20230214-22-5ou0k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/510100/original/file-20230214-22-5ou0k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/510100/original/file-20230214-22-5ou0k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/510100/original/file-20230214-22-5ou0k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/510100/original/file-20230214-22-5ou0k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The U.S. Postal Service partnered with Amazon for Sunday deliveries.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/woman-delivering-packages-in-residential-royalty-free-image/1280235764?phrase=mailman&adppopup=true">The Good Brigade/Digital Vision via Getty Images</a></span>
</figcaption>
</figure>
<h2>From the post office to the courts</h2>
<p>Groff then filed suit in federal court in Pennsylvania under <a href="https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964">Title VII of the Civil Rights Act</a>, a far-reaching federal statute that forbids workplace discrimination on the basis of religion, race, color, sex and national origin. However, <a href="https://casetext.com/case/groff-v-dejoy?sort=relevance&q=groff%20v%20dejoy&p=1&tab=keyword&jxs=&type=case&resultsNav=false">the court held</a> that USPS officials had offered reasonable accommodations.</p>
<p>Groff appealed, but in a 2-1 judgment, the 3rd Circuit affirmed <a href="https://www2.ca3.uscourts.gov/opinarch/211900p.pdf">in favor of USPS</a>, relying on two Supreme Court cases.</p>
<p>In the first case that the 3rd Circuit relied on, <a href="https://supreme.justia.com/cases/federal/us/432/63/">Trans World Airlines v. Hardison</a>, the Supreme Court had ruled that employers need not accommodate the religious needs of employees if doing so would require them “to bear more than a de minimis cost.” Ever since this 1977 decision, employers have generally used the Hardison decision to refuse accommodations deemed more than “de minimis.”</p>
<p>In the second case that the 3rd Circuit cited, <a href="https://supreme.justia.com/cases/federal/us/479/60/">Ansonia Board of Education v. Philbrook</a>, the Supreme Court interpreted Title VII as meaning that once employers offer an employee reasonable accommodations – even if not the requested accommodations – officials are not obligated to do anything else if the original request would have created undue hardships on other workers. </p>
<h2>The Supreme Court’s turn</h2>
<p>Groff’s case highlights the tension between Title VII’s actual words – which require employers to make “reasonable accommodations” for time away from duties – and the court’s interpretation of them in the Hardison case, which does not require employers to bear more than “de minimis” costs. Groff’s attorneys are also asking the court to settle whether costs to other employees – such as having to cover more Sunday shifts – count as “undue hardship” on the business itself.</p>
<p>In advance of the oral arguments, four members of the Supreme Court appear to be skeptical of the “de minimis” interpretation in Hardison. In a decision <a href="https://www.law.cornell.edu/supremecourt/text/18-349">for another case</a>, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, criticized Hardison as inadequate, writing that “de minimis” “does not represent the most likely interpretation of the statutory term ‘undue hardship.’”</p>
<p>In <a href="https://www.supremecourt.gov/opinions/20pdf/19-1388_4f14.pdf">yet another case</a>, Gorsuch agreed that the Hardison rationale “dramatically revised – really, undid – Title VII’s undue hardship test.” Under its definition, “the company had no obligation to provide [the] requested accommodation because doing so would have cost the company something (anything) more than a trivial amount.” </p>
<p>The court has been <a href="https://theconversation.com/how-the-supreme-court-found-its-faith-and-put-religious-liberty-on-a-winning-streak-158509">supportive of religious freedom claims</a> in its most recent cases, leading some analysts to anticipate change <a href="https://www.vox.com/policy-and-politics/23559038/supreme-court-groff-dejoy-religion-twa-hardison-workplace">is in the offing</a>. </p>
<p>Regardless of how the Supreme Court rules in Groff, though, this much is reasonably certain: The justices will usher in a new era of employer-employee relations with regard to religious accommodations.</p><img src="https://counter.theconversation.com/content/198499/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Employers navigating employees’ requests for religious accommodations face some confusing guidance. A new Supreme Court case could clarify – and shift the norm.Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1915402022-12-02T13:50:25Z2022-12-02T13:50:25ZReligious freedom and LGBTQ rights are clashing in schools and on campuses – and courts are deciding<figure><img src="https://images.theconversation.com/files/498370/original/file-20221201-14-p5fzd7.jpg?ixlib=rb-1.1.0&rect=1%2C1%2C1020%2C680&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People walk by the campus of Yeshiva University in New York City.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-walk-by-the-campus-of-yeshiva-university-in-new-york-news-photo/1419391874?phrase=yeshiva&adppopup=true">Spencer Platt/Getty Images</a></span></figcaption></figure><p>Disputes over religious freedom and LGBTQ rights in the United States have led to some of the most high-profile judicial controversies – and <a href="https://theconversation.com/supreme-court-to-revisit-lgbtq-rights-this-time-with-a-wedding-website-designer-not-a-baker-187584">2022 is no exception</a>. For example, the Supreme Court will hear arguments Dec. 5, 2022, about whether a designer can <a href="https://www.scotusblog.com/case-files/cases/303-creative-llc-v-elenis/">refuse to create wedding websites</a> for same-sex couples; a ruling is likely in late June 2023.</p>
<p>Lately, many of these controversies have begun in educational settings, both in K-12 schools and on college campuses. As <a href="https://udayton.edu/directory/education/eda/russo_charles.php">a professor of education law</a> who often writes about First Amendment issues in schools, I see these cases, which are trying to balance tensions between fundamental rights, as potentially shaping new precedents.</p>
<p>Cases at <a href="https://www.scotusblog.com/case-files/cases/yeshiva-university-v-yeshiva-university-pride-alliance/">Yeshiva University</a>, a private Orthodox Jewish school in New York City, and <a href="https://www.king5.com/article/news/local/seattle-pacific-university-lgbtq-hiring-ban-lawsuit/281-a25540df-3188-4586-bb7f-1f170f981d25">Seattle Pacific University</a>, a small Christian school, have made headlines, but they are not the only examples. Similar concerns arose at Catholic high schools in Indiana, where courts upheld the dismissals of employees in same-sex marriages, as well as Samford University in Alabama, where campus officials <a href="https://www.al.com/education/2022/10/samford-university-denies-application-to-form-lgbtq-student-group.html?utm_source=Pew+Research+Center&utm_campaign=7513d89a04-EMAIL_CAMPAIGN_2022_10_25_12_52&utm_medium=email&utm_term=0_3e953b9b70-7513d89a04-401090902">denied a student request</a> to form a club for law students who are LGBTQ.</p>
<h2>Stamp of approval</h2>
<p>The dispute at Yeshiva University emerged when officials <a href="https://forward.com/fast-forward/518289/yeshiva-university-suspends-all-student-clubs-after-scotus-denies-its-request-to-block-lgbtq-group/">rejected the YU Pride Alliance’s request</a> for official recognition, saying it was inconsistent with the school’s religious values.</p>
<p>The Pride Alliance filed suit alleging that the university violated a provision of the <a href="https://www1.nyc.gov/assets/cchr/downloads/pdf/Title-8-Text-of-the-Law-3-2022.pdf">New York City Human Rights Law</a>, which bans discrimination based on sexual orientation and gender. After a state trial court <a href="https://www.nytimes.com/2022/06/16/nyregion/yeshiva-univ-lgbtq-club.html">rejected Yeshiva’s defense</a> that it should be exempt because it is a religious institution, the school appealed to the Supreme Court, which <a href="https://www.nytimes.com/2022/09/09/nyregion/yeshiva-university-lgbt-sotomayor.html?searchResultPosition=3">granted a brief stay of the order</a> on Sept. 9, 2022. </p>
<p>Five days later, however, the Supreme Court <a href="https://www.scotusblog.com/case-files/cases/yeshiva-university-v-yeshiva-university-pride-alliance/">vacated the stay</a>: In other words, the justices declined to block the order that Yeshiva officials recognize the club.</p>
<p>The court did not address the merits of the claims, but told university officials that they must exhaust other avenues of appeal in state courts before they can ask the Supreme Court to decide. Still, four justices dissented, their concern about the case clear.</p>
<p>“The First Amendment guarantees the right to the free exercise of religion, and if that provision means anything, it prohibits a State from enforcing its own preferred interpretation of Holy Scripture,” Justice Samuel Alito <a href="https://www.supremecourt.gov/opinions/21pdf/22a184_new_0971.pdf">wrote in his dissent</a>. Joined by Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett, Alito added, “Yet that is exactly what New York has done.”</p>
<p>Rather than comply with the order, Yeshiva’s administration suspended all student clubs while it continued to fight the case. It soon offered <a href="https://yucommentator.org/2022/10/yu-creates-new-lgbtq-club-grounded-in-halacha-and-torah-values/">its own official club</a>, saying it was for LGBTQ students “striving to live authentic Torah lives.” The dispute persists, however, because the Pride Alliance <a href="https://gaycitynews.com/yu-pride-alliance-yeshiva-university-sham-club/">continues to seek recognition</a>.</p>
<p>A 2010 Supreme Court case, <a href="https://www.oyez.org/cases/2009/08-1371">Christian Legal Society v. Martinez</a>, provides useful precedent as to student groups. In a 5-4 decision, the justices decided that officials in a public law school in California could implement a policy requiring a religious student group to admit “all comers,” meaning all who were interested, even if they disagreed with its core beliefs.</p>
<p>Now, the Yeshiva and Samford disputes are testing the limits of that precedent, albeit with a twist. While the 2010 case involved the actions of student groups, these controversies involve employers’ religious beliefs and actions, which are protected under <a href="https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964">Title VII of the Civil Rights Act of 1964</a>.</p>
<h2>Hiring and firing</h2>
<p>The second set of recent cases involves employment – specifically, whether officials in faith-based high schools can fire staff for marriages that violate their beliefs.</p>
<p>In three separate cases from Indiana, courts have upheld the terminations of a supervisory guidance counselor, another guidance counselor and a teacher at Roman Catholic high schools who married same-sex spouses.</p>
<p>The <a href="https://law.justia.com/cases/federal/appellate-courts/ca7/21-2524/21-2524-2022-07-28.html">Seventh Circuit court</a>,
the <a href="https://law.justia.com/cases/indiana/supreme-court/2022/22s-cp-00302.html">Supreme Court of Indiana</a> and a <a href="https://casetext.com/case/fitzgerald-v-roncalli-high-sch">federal trial court</a> largely based their judgments on the Civil Rights Act of 1964, which prohibits employment discrimination on a variety of personal characteristics, including race, color, religion, sex or national origin. In 2020’s <a href="https://www.law.cornell.edu/supremecourt/text/17-1618">Bostock v. Clayton County</a>, the Supreme Court interpreted Title VII as extending protection against employment discrimination to individuals who are gay and transgender.</p>
<p>Most notably for these controversies, though, Title VII grants far-reaching exceptions for faith-based employers. Usually referred to as the “<a href="https://www.eeoc.gov/laws/guidance/questions-and-answers-religious-discrimination-workplace">ministerial exception</a>,” this provision allows officials in religious institutions to dismiss individuals who do not comply with the dictates of the employer’s faith, or to not hire them in the first place.</p>
<p>To be excluded from the reach of Title VII, employees do not need to serve in formal, ordained ministerial positions. Still, employers must prove that those employees’ duties are integrally related to institutional spiritual missions. In the Indiana cases, courts decided that school officials had met that requirement.</p>
<figure class="align-center ">
<img alt="Two students walk down a sidewalk near a sign that says, 'Seattle Pacific.'" src="https://images.theconversation.com/files/498380/original/file-20221201-12-iq7whf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/498380/original/file-20221201-12-iq7whf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498380/original/file-20221201-12-iq7whf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498380/original/file-20221201-12-iq7whf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498380/original/file-20221201-12-iq7whf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498380/original/file-20221201-12-iq7whf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498380/original/file-20221201-12-iq7whf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A group of students, faculty and staff have sued leaders of Seattle Pacific’s board of trustees over an employment policy they say is discriminatory.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ChristianCollege-LGBTQLawsuit/282436f422ce4855b257714a10669954/photo?Query=%22seattle%20pacific%20university%22&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=130&currentItemNo=0">AP Photo/Chris Grygiel</a></span>
</figcaption>
</figure>
<p>A similar kind of dispute arose at Seattle Pacific University in Washington state, where employees and students <a href="https://www.npr.org/2022/05/30/1101836797/seattle-pacific-university-student-protests">challenged a campus policy</a> banning employees from same-sex marriages. In the wake of the discrimination claim filed against campus officials, the school <a href="https://www.christianitytoday.com/news/2022/july/seattle-pacific-university-lawsuit-washington-lgbt-hiring.html">filed its own case</a> to prevent the state attorney general’s investigation into whether the charges have merit. A federal trial court <a href="https://www.atg.wa.gov/news/news-releases/ag-ferguson-judge-dismisses-seattle-pacific-university-s-lawsuit-stop-attorney">rejected that attempt</a>, and the investigation continues.</p>
<p>Although it has not yet led to litigation, a like controversy in Pennsylvania reached a different outcome, revealing a different perspective about the rights of LGBTQ employees on a campus. Controversy arose in May 2022 when officials at Eastern College, which is affiliated with the American Baptist Churches USA, <a href="https://religionnews.com/2022/11/14/eastern-university-drops-ban-on-lgbtq-faculty/">reversed their policy</a> of not hiring or retaining employees who are LGBTQ, adding sexual orientation to their employment nondiscrimination policy. As a result, Eastern put its membership in the Council for Christian Colleges and Universities <a href="https://www.insidehighered.com/news/2022/11/16/eastern-u-hold-christian-council-over-lgbtq-stance">in jeopardy</a> because council officials said members’ policies should align with “the historic Christian view of marriage.” </p>
<p>The sensitive issues underlying these disputes go to the very heart of what it means to be human: how individuals and organizations can live in ways that are consistent with their personal values and needs, and how to balance religious freedom with freedom from discrimination. These controversies bear watching closely, I believe, because they are likely to have a profound impact on the shape of American society, and the next generation’s education.</p><img src="https://counter.theconversation.com/content/191540/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Yeshiva University’s legal case has garnered national attention, but several similar cases are underway.Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1875842022-09-09T12:34:56Z2022-09-09T12:34:56ZSupreme Court to revisit LGBTQ rights – this time with a wedding website designer, not a baker<figure><img src="https://images.theconversation.com/files/483333/original/file-20220907-9395-6xdmsq.jpg?ixlib=rb-1.1.0&rect=22%2C6%2C2087%2C1400&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Same-sex wedding cakes wound up at the Supreme Court – now, it's wedding websites' turn.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/close-up-of-gay-men-holding-hands-in-dark-royalty-free-image/675593111?adppopup=true">S_nke Bullerdiek/EyeEm via Getty Images</a></span></figcaption></figure><p>A simmering, difficult, and timely question returns to the Supreme Court on December 5, 2022: What happens when freedom of speech and civil rights collide?</p>
<p>The court took up similar questions four years ago in the famous “<a href="https://theconversation.com/why-the-supreme-courts-gay-wedding-cake-ruling-wont-resolve-religious-freedom-issues-97759">gay wedding cake” case</a>, <a href="https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf">Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission</a>, about a baker who refused to provide services for a same-sex couple based on his religious beliefs. The justices ruled in his favor, but did so on narrow grounds, sidestepping the direct constitutional questions over freedom of religion and free speech.</p>
<p>Now, another case from Colorado about free speech and same-sex marriage has made its way to the court: <a href="https://www.scotusblog.com/case-files/cases/303-creative-llc-v-elenis/">303 Creative v. Elenis</a>. As <a href="https://udayton.edu/directory/education/eda/russo_charles.php">a professor of law and education</a> who pays particular attention to First Amendment issues, I see the case highlighting tension between two competing fundamental interests – interests that seem to clash routinely in 21st-century America.</p>
<p>On Aug. 30, 2022, for example, another <a href="https://www.courier-journal.com/story/news/2022/08/31/federal-court-rules-chelsey-nelson-photography-vs-louisville-fairness-ordinance/65465495007/">similar case was decided</a>, this time in Kentucky. A <a href="https://cases.justia.com/federal/district-courts/kentucky/kywdce/3:2019cv00851/114724/130/0.pdf?ts=1661949564&lctg=19997310">federal trial court</a> ruled in favor of a Louisville wedding photographer who sued over the city’s “Fairness Ordinance,” which prohibits discrimination based on sexual orientation or gender identity. She argued that the law violated her religious beliefs and right to free speech, and the court agreed, explaining that “the government may not force singers or writers or photographers to articulate messages they don’t support.” </p>
<h2>Freedom to speak – or stay silent</h2>
<p>Graphic artist Lorie Smith is the founder and owner of a studio called <a href="https://303creative.com/about/">303 Creative</a>. According to <a href="https://cases.justia.com/federal/appellate-courts/ca10/19-1413/19-1413-2021-07-26.pdf?ts=1627336853">court documents</a>, Smith is generally willing to serve LGBTQ clients. However, she intends to begin designing wedding websites and is unwilling to create them for same-sex couples, saying it would go against her Christian beliefs.</p>
<p>Under <a href="https://ccrd.colorado.gov/regulatory-information">Colorado’s Anti-Discrimination Act</a>, though, it is discriminatory and illegal to refuse services to someone based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”</p>
<p>In 2016, Smith <a href="https://www.denverpost.com/2016/09/21/colorado-lawsuit-says-law-promotes-same-sex-marriage/">sued the members of the state’s Civil Rights Commission and Colorado’s attorney general</a>. Smith argued that being required to prepare a same-sex wedding website would violate her <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment</a> rights by forcing her to speak – what lawyers refer to as “compelled speech.”</p>
<p>The constitutional right to freedom of “speech” has historically been understood to cover a variety of ways people express themselves, including in writing, art and protest. But not only does it protect the right to protect one’s speech, it also safeguards <a href="https://www.mtsu.edu/first-amendment/article/933/compelled-speech">the right to not speak in the first place</a>.</p>
<p>Through her attorneys, Smith also maintained that requiring her to create a website would violate her <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment</a> right to the free exercise of religion.</p>
<h2>Path to SCOTUS</h2>
<p>The federal trial court in Colorado <a href="https://casetext.com/case/303-creative-llc-v-elenis-1">rejected Smith’s request</a> to block the anti-discrimination law in 2019. When she appealed, <a href="https://casetext.com/case/303-creative-llc-v-elenis-3">the circuit court</a> agreed with the previous ruling: She could not refuse to create websites for same-sex weddings, even if it would have gone against her beliefs.</p>
<p>Protecting diverse viewpoints is “a good in and of itself,” the court wrote, but combating discrimination “is, like individual autonomy, ‘essential’ to our democratic ideals.”</p>
<p>In <a href="https://cases.justia.com/federal/appellate-courts/ca10/19-1413/19-1413-2021-07-26.pdf?ts=1627336853">a lengthy dissent</a>, the chief judge highlighted Smith’s claim of compelled speech, criticizing the court for taking “the remarkable – and novel – stance that the government may force Ms. Smith to produce messages that violate her conscience.”</p>
<p>Smith appealed to the Supreme Court, which, in February 2022, agreed to hear her claim, limited to the issue of free speech, not freedom of religion. The question <a href="https://www.supremecourt.gov/docket/docketfiles/html/qp/21-00476qp.pdf">for the nine justices to decide</a> will be “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”</p>
<figure class="align-center ">
<img alt="A man in a black shirt and a gray apron stands amid many-tiered wedding cakes in a green room." src="https://images.theconversation.com/files/483336/original/file-20220907-2774-q9y5k0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/483336/original/file-20220907-2774-q9y5k0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/483336/original/file-20220907-2774-q9y5k0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/483336/original/file-20220907-2774-q9y5k0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/483336/original/file-20220907-2774-q9y5k0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/483336/original/file-20220907-2774-q9y5k0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/483336/original/file-20220907-2774-q9y5k0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Jack Phillips, whose Masterpiece Cakeshop case went to the Supreme Court, stands in his Colorado bakery.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/jack-phillips-stands-for-a-portrait-near-a-display-of-news-photo/803122450?adppopup=true">Matthew Staver/For The Washington Post via Getty Images</a></span>
</figcaption>
</figure>
<h2>Key to the case?</h2>
<p>So, how will the justices rule? The Supreme Court may have given a clue to its initial attitude <a href="https://www.supremecourt.gov/docket/docketfiles/html/qp/21-00476qp.pdf">when it announced it would hear the case</a>. The justices zoomed in on a legal standard called “strict scrutiny,” as they did in its earlier case on this issue, Masterpiece Cakeshop.</p>
<p>Under <a href="https://www.law.cornell.edu/wex/strict_scrutiny#:%7E:text=To%20pass%20strict%20scrutiny%2C%20the,the%20constitutionality%20of%20governmental%20discrimination.">strict scrutiny analysis</a>, the most stringent form of judicial review, government restrictions on fundamental rights must be justified by a compelling state interest in order to be upheld. In other words, the restrictions must advance government interests of the highest order, and be narrowly tailored to those goals – in this case, preventing discrimination on the basis of sexual orientation.</p>
<p>But the Supreme Court appeared skeptical that Colorado’s anti-discrimination act could survive this test, <a href="https://www.supremecourt.gov/docket/docketfiles/html/qp/21-00476qp.pdf">writing</a>, “The Tenth Circuit applied strict scrutiny and astonishingly concluded that the government may, based on content and viewpoint, force Lorie to convey messages that violate her religious beliefs and restrict her from explaining her faith.”</p>
<p>When the Supreme Court applies strict scrutiny, it rarely upholds governmental restrictions on constitutional rights – which could suggest a win for Smith.</p>
<p>Another possible indication, again in favor of Smith, is in <a href="https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf">Janus v. American Federation of State, County, and Municipal Employees, Council 31</a>, a 2018 case from Illinois involving compelled speech. Here the Supreme Court ruled in favor of a nonunion public employee who challenged an Illinois law requiring him to pay fair share fees to the union representing his colleagues for costs associated with the bargaining process. The court agreed with the employee’s claim that because the union supported positions with which he disagreed, his having to pay the fees violated his First Amendment right as a form of compelled speech.</p>
<h2>A second chance</h2>
<p>On the other side of the controversy is the vital interest of same-sex couples and others in the LGBTQ community to live free from discrimination based on their sexual orientations. </p>
<p>In a 2019 case, <a href="https://www.law.cornell.edu/supremecourt/text/17-1618">Bostock v. Clayton County</a>, the Supreme Court interpreted <a href="https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964">Title VII of the Civil Rights Act of 1964</a>, a far-reaching employment statute, as extending protection against discrimination in the workplace to individuals who are gay and transgender. However, the Court has yet to address the clash of rights at issue in 303 Creative.</p>
<p>The key question, then, appears to be whether individuals can require artists or those who engage in expressive activities to provide their services if doing so can be viewed as a form of compelled speech, violating their right to stay silent on issues with which they disagree.</p>
<p>Thus, it remains to be seen whether 303 Creative will set a new precedent on balancing First Amendment freedoms while protecting others from discrimination. After all, it sidestepped constitutional issues <a href="https://theconversation.com/why-the-supreme-courts-gay-wedding-cake-ruling-wont-resolve-religious-freedom-issues-97759">in Masterpiece Cakeshop</a>. <a href="https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf">The court based its decision</a> in the baker’s favor on some of the Colorado commission members’ comments about his beliefs. The majority found that those comments violated the state’s First Amendment duty to maintain religious neutrality while avoiding hostility to faith-based beliefs or viewpoints.</p>
<p>On Oct. 18, 2022 <a href="https://www.supremecourt.gov/oral_arguments/argument_calendars/MonthlyArgumentCalDecember2022.pdf">the Supreme Court announced</a> that it will hear oral arguments in 303 Creative on Dec. 5, 2022. Though the court likely will not render a judgment until near the end of its term in June 2023, it promises to be one of the upcoming year’s highest-profile judgments. And, regardless of the outcome, 303 Creative is likely to generate even more controversy.</p>
<p><em>Article updated on Oct. 20, 2022 to include the date of oral arguments in 303 Creative v. Elenis.</em></p><img src="https://counter.theconversation.com/content/187584/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>303 Creative v. Elenis gives SCOTUS another chance to set precedent about what happens when First Amendment freedoms come at a cost to civil rights.Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1866132022-07-19T12:25:16Z2022-07-19T12:25:16ZReligious liberty has a long and messy history – and there is a reason Americans feel strongly about it<figure><img src="https://images.theconversation.com/files/473957/original/file-20220713-9428-wik5p1.jpg?ixlib=rb-1.1.0&rect=26%2C44%2C5964%2C3898&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Abortion-rights protesters shout slogans after tying green flags to the fence of the White House in Washington, D.C. on July 9, 2022.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtAbortion/0ecfa1df67e944e792b93fb7e1fd0001/photo?Query=supreme%20court&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=49829&currentItemNo=9">AP Photo/Gemunu Amarasinghe</a></span></figcaption></figure><p>At the close of its recent term the Supreme Court ruled on the cases of <a href="https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf">Carson v. Makin</a> and <a href="https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf">Kennedy v. Bremerton School District</a>, rekindling controversy over one of the most enduring issues in American history: religious liberty. Another of this term’s blockbuster decisions, <a href="https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/">Dobbs v. Jackson Women’s Health Organization</a>, underlines the fact that religious beliefs and actions in the public realm matter. Whether the issue concerns religion and education, prayer or reproduction, Americans feel strongly about their religious liberties. </p>
<p>The Carson case came from Maine, where areas with too few students to justify a public high school used public money to pay private schools to educate their students. Under its policy, Maine only allowed nonsectarian private schools or nearby public school districts to receive the funds. Parents who wished to send their students to religious schools argued that the policy discriminated based on religion. The court’s majority agreed, ruling that denying state support to students attending religious schools because their schools were religious violated the First Amendment’s protections on religious freedom.</p>
<p>In the Kennedy case, the court chipped away at decades of rulings that deemed school employees leading prayer an unlawful establishment of religion because it entangled church and state in the act. In the court’s revised view, coach Joseph Kennedy possessed a First Amendment right to <a href="https://theconversation.com/supreme-court-to-decide-whether-a-public-school-football-coach-can-pray-on-the-field-177980">privately pray</a> after football games on the 50-yard line, permissible even if students joined him in praying.</p>
<p>Religious liberty is one of the earliest civic values associated with the United States, yet defining and defending it has proved a centurieslong process. Both sides of the courts’ divided opinions claimed to be speaking for religious liberty. This is possible because <a href="https://constitution.congress.gov/constitution/amendment-1/">religious liberty under the Constitution</a> contains both a right to freely exercise religion and a right not to be coerced via the state into accepting someone else’s religious practices.</p>
<p>As <a href="https://divinity.vanderbilt.edu/people/bio/jim-hudnut-beumler">historians</a> of <a href="https://divinity.vanderbilt.edu/people/bio/jimmy-byrd">American religious history</a> and authors of a recent book, “<a href="https://www.wjkbooks.com/Products/0664264662/the-story-of-religion-in-america.aspx">The Story of Religion in America</a>,” we know that both sides of religious liberty – freedom to exercise one’s own religion and freedom from being forced to support other people’s religions – have a long and important past. </p>
<h2>The founders on religious freedom</h2>
<p>The Constitution’s First Amendment, adopted in 1791, defended the free exercise of religion and prohibited the founding of a national church. The leading founders on religious liberty and church-state issues were two Virginians, <a href="https://virginiahistory.org/learn/thomas-jefferson-and-virginia-statute-religious-freedom">Thomas Jefferson</a> and James Madison.</p>
<p>The problem with religious beliefs, <a href="https://www.montpelier.org/learn/religious-freedom">Madison</a> believed, was that most often people could not agree on them. Governments, he argued, therefore had no business supporting religion. </p>
<p>Religion could unite people, but most often it did the opposite, dividing people into opposing sides, each believing their side was sacred. In Madison’s view, therefore, religious differences made it harder to run a government for the <a href="https://thefederalistpapers.org/founders/madison/james-madison-religion-and-government-exist-in-greater-purity-the-less-they-are-mixed-together">common good</a>. </p>
<h2>Early American religious liberty</h2>
<p>Over 150 years before religious liberty entered the Constitution, however, it lived in the mind and conduct of Roger Williams, a Puritan educated at the University of <a href="https://historycambridge.org/research/cambridge-the-focal-point-of-puritan-life-part-one/">Cambridge</a>, who challenged Puritan views on religious liberty and the relationship between church and state.</p>
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<a href="https://images.theconversation.com/files/473958/original/file-20220713-18-g2n793.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A statue of Roger Williams overlooking the skyline, in Providence, Rhode Island." src="https://images.theconversation.com/files/473958/original/file-20220713-18-g2n793.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/473958/original/file-20220713-18-g2n793.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/473958/original/file-20220713-18-g2n793.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/473958/original/file-20220713-18-g2n793.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/473958/original/file-20220713-18-g2n793.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/473958/original/file-20220713-18-g2n793.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/473958/original/file-20220713-18-g2n793.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Roger Williams founded Providence, R.I., as a refuge for people wanting religious liberty.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RogerWilliamsStrategy/7e1f88f7ba80416dbc620a5040cbfd69/photo?Query=roger%20williams%20providence&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=85&currentItemNo=73">AP Photo/Steven Senne</a></span>
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<p>No sooner had Williams landed in New England than he began challenging Puritan authorities, saying that civil courts should not enforce religious belief and that the right to worship (or not) according to one’s own conscience was fundamental. He noted that the <a href="http://www.findingrogerwilliams.com/essays/native-americans">American Indians</a>, to whom his fellow Christians considered themselves superior, were often better people than the English. </p>
<p>These beliefs terrified and infuriated Puritan leaders, who promptly <a href="https://www.history.com/this-day-in-history/rhode-island-founder-banished-from-massachusetts">banished radical Roger</a> from the Massachusetts Bay Colony. He later resurfaced in what became the colony of Rhode Island, where he helped to start a new settlement called Providence, which, unlike Puritan-controlled Massachusetts Bay, would <a href="https://constitution.org/2-Authors/bcp/religlib.htm">allow religious liberty</a> for all who lived there. </p>
<p>Although the Puritans thought Williams’ ideas were <a href="https://www.massmoments.org/moment-details/roger-williams-banished.html">dangerous</a>, Williams believed the greatest danger was in government trying to <a href="https://www.smithsonianmag.com/history/god-government-and-roger-williams-big-idea-6291280/">legislate religion</a>. He only had to point to the fact that more blood had been shed over religion than just about any issue, with Protestants fighting Catholics, <a href="https://faculty.etsu.edu/history/documents/rogerwilliams.htm">Christians fighting Muslims</a>, and European empires trying to forcibly convert Indigenous Americans in <a href="https://onlinebooks.library.upenn.edu/webbin/book/lookupid?key=ha001685353">so-called “missions</a>.” </p>
<h2>The slow path to religious liberty for all</h2>
<p>Yet state-sponsored religion died hard. Massachusetts was the last state to abandon the establishment of a church, in 1833. Even after all the states had abandoned their tax-supported <a href="https://mtsu.edu/first-amendment/article/801/established-churches-in-early-america">“official” denominations</a>, states continued to police religious and moral conduct. </p>
<p>Moreover, the states themselves often forced Christianity, and particularly <a href="https://oxfordre.com/americanhistory/view/10.1093/acrefore/9780199329175.001.0001/acrefore-9780199329175-e-59">Protestantism</a>, onto the public in school and public policy. This continued until the First Amendment’s prohibitions on government religion was extended to the states via the 14th Amendment. Two Supreme Court cases involving Jehovah’s Witnesses’ refusing to salute the flag – Minersville School District v. Gobitis (1940) and <a href="https://mtsu.edu/first-amendment/article/227/west-virginia-state-board-of-education-v-barnette">West Virginia v. Barnette</a> (1943) – were important in this. In other words, the right to religious liberty, in the sense of being allowed to refrain from an activity due to one’s religious convictions, is less than a long lifetime old. </p>
<p>Up through the Vietnam War, if a man applied to be a conscientious objector, draft boards examined whether he came from a denomination that objected to all participation in war – Mennonites or Quakers, for example. Objection to a particular war, or assertion of one’s own <a href="https://mtsu.edu/first-amendment/article/241/welsh-v-unitedIn%20subsequent%20decades%20in%20subsequent%20decadesin%20subsequent%20decades-states">sincerely held beliefs</a>, did not get one off the hook for draft induction.</p>
<p>This orientation changed beginning with the Supreme Court’s recognition of individual conscience in two cases: <a href="https://mtsu.edu/first-amendment/article/241/welsh-v-united-states">Welsh v. United States</a> (1970) and <a href="https://www.mtsu.edu/first-amendment/article/234/gillette-v-united-states">Gillette v. United States</a> (1971). The rulings came too late to keep Muhammad Ali from going to jail when he resisted the draft in 1967. But they relocated the locus of conscience to individuals, provided their objections were sincerely held. </p>
<h2>Individual consciences in collective conflict</h2>
<p>In subsequent decades American religious life has itself become more centered on individuals and less on the teachings of religious traditions. Courts have likewise focused more on particular people’s definitions of their own sincerely held beliefs. These shifts are both very American – as illustrated in the example of Roger Williams – and susceptible to <a href="https://berkleycenter.georgetown.edu/responses/the-unconscionable-division-of-conscience-and-religious-freedom">greater social division</a> because citizens’ and groups’ beliefs may take them in opposite directions.</p>
<p>Religious liberty in America is perpetually a work in progress. The free exercise and establishment clauses of the First Amendment live in perpetual tension – two goods that must be balanced. The Supreme Court’s recent religious liberty rulings are fully a part of America’s long struggle to define religious freedom and only the most recent attempt to achieve a balance between goods. </p>
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<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Historians of American religious history explain why the Supreme Court’s recent religious liberty rulings are an example of America’s long struggle to define religious freedom.James Hudnut-Beumler, Professor of American Religious History, Vanderbilt UniversityJames P. Byrd, Professor of American Religious History, Vanderbilt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1845342022-07-08T12:13:48Z2022-07-08T12:13:48ZThere is no one Islamic interpretation on ethics of abortion, but the belief in God’s mercy and compassion is a crucial part of any consideration<figure><img src="https://images.theconversation.com/files/472623/original/file-20220705-24-eq6ujs.jpg?ixlib=rb-1.1.0&rect=0%2C3%2C2121%2C1403&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Islamic ethics allow for many views on abortion, depending on what kind of scriptural sources are considered and by whom.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/pregnant-woman-talks-seriously-with-ob-gyn-royalty-free-image/1023744316?adppopup=true">SDI Productions/E+ via Getty Images</a></span></figcaption></figure><p><a href="https://faculty-directory.dartmouth.edu/zahra-ayubi">As a scholar of Islamic ethics</a>, I’m often asked, “What does Islam say about abortion?” – a question that has become even more salient since the <a href="https://theconversation.com/a-revolutionary-ruling-and-not-just-for-abortion-a-supreme-court-scholar-explains-the-impact-of-dobbs-185823">U.S. Supreme Court reversed</a> 50 years of constitutional protection for the right to get an abortion in the <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Dobbs v. Jackson Women’s Health Organization</a> ruling on June 24, 2022. </p>
<p>This question really needs to be reframed, because it implies a singular view. Islam isn’t monolithic, and there is no single Islamic attitude about abortion. The answer to the question depends on what kinds of Islamic sources, scriptural, legal or ethical, are applied to this contemporary issue by people of varying levels of authority, expertise or religious observance. </p>
<p>Muslims have had a long-standing, rich relationship with science, and specifically, the practice of <a href="https://www.routledge.com/Piety-and-Patienthood-in-Medieval-Islam/Ragab/p/book/9780367591038">medicine</a>. This has yielded multiple interpretations of right and wrong when it comes to the body, including <a href="https://sunypress.edu/Books/C/Conceiving-Identities">ideas about and practices surrounding pregnancy</a>.</p>
<h2>Islamic frameworks for thinking about abortion</h2>
<p>The typical framing of the question of whether abortion ought to be legal hinges upon <a href="https://theconversation.com/religious-beliefs-give-strength-to-the-anti-abortion-movement-but-not-all-religions-agree-182500">American Christian debates about when life begins</a>. Muslims who get abortions don’t always ask “when does life begin?” to ascertain Islamic positions on the matter. Rather, as my research in the <a href="https://abortionandreligion.com/">Abortion and Religion</a> project and forthcoming book “Women as Humans” has found, Muslims who get abortions generally consider under what circumstances abortion would be permitted in the Islamic tradition. </p>
<p>Further, the Quranic verses and hadith – recorded sayings of the Prophet Muhammad – are not about abortion per se, nor the moment when life begins or whether abortion is akin to taking a life. Instead, they are descriptions for people to reflect on God’s miracle of what happens in the womb, or rahm in Arabic, which is part of God’s mercy and compassion.</p>
<p>It is often a deeply theological discussion about human actions in context of God’s will, omnipotence and omniscience when it comes to life and death. The dialogue often yields answers that are specific to the person’s cosmic and religious beliefs about God’s nature and mercy and their circumstances in the abortion decision-making process.</p>
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<a href="https://images.theconversation.com/files/472622/original/file-20220705-16-2q7txr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A Muslim woman reads the Quran." src="https://images.theconversation.com/files/472622/original/file-20220705-16-2q7txr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/472622/original/file-20220705-16-2q7txr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/472622/original/file-20220705-16-2q7txr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/472622/original/file-20220705-16-2q7txr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/472622/original/file-20220705-16-2q7txr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/472622/original/file-20220705-16-2q7txr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/472622/original/file-20220705-16-2q7txr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Specific verses in the Quran have descriptions of the stages of gestation of the fetus.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/sign-in?ReturnUrl=%2Fdetail%2Fphoto%2Freading-the-quran-royalty-free-image%2F567311385%3Fadppopup%3Dtrue">Marvin del Cid/Moment via Getty Images</a></span>
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<p>Many contemporary Muslim jurists and bioethicists point to specific verses in the Quran as well as hadiths with descriptions of the stages of human gestation that are mapped onto the pregnancy timeline in the contemporary abortion debate. The often-cited Quranic verses are <a href="https://corpus.quran.com/wordbyword.jsp?chapter=23&verse=11">23:12-14</a>: “And indeed We created humankind from an essence of clay. Then We placed him as a sperm-drop in a resting place firm; then We created the sperm-drop into a clinging substance, then We created the clinging substance into an embryonic lump, then We created from the embryonic lump bones, then We clothed the bones with flesh, then We produced it as another creation. So blessed is God, the best of creators.”</p>
<p>Then there is the <a href="https://hadithcollection.com/sahihbukhari/sahih-bukhari-book-54-beginning-of-creation/sahih-bukhari-volume-004-book-054-hadith-number-430">hadith</a> in which Prophet Muhammad describes what happens in the womb: “The human being is brought together in the mother’s womb for forty days in the form of a drop of fluid, and then becomes a clot of thick blood for a similar period, and then a piece of flesh for a similar period. … Then the soul is breathed into him. …”</p>
<p>These scriptural traditions divide the pregnancy timeline into stages. Muslim jurists consider the 120-day mark of ensoulment (40 days x 3 stages), when God is believed to blow life into the fetus, as the point at which the fetus becomes a legal entity with financial rights. The fetus is believed to have inheritance rights; it can leave an inheritance to its siblings or other kin if it dies, or provide its parents with blood money in the event of a violent action against the mother.</p>
<p>While reference to the scriptural tradition might be enough for many Muslims, some might look to the Muslim legal tradition for precedence. Premodern jurists’ inquiries into stage of pregnancy were mainly to settle questions such as what inheritance laws might come into effect in the event of fetal death. They weren’t asking when life begins to settle abortion questions. And even as they touched on the question of legal personhood of a fetus, <a href="https://uscpress.com/Islamic-Ethics-of-Life">they ruled on a case-by-case basis</a> <a href="https://uscpress.com/Islamic-Ethics-of-Life">rather than through blanket pronouncements</a>.</p>
<h2>Contemporary jurisprudence</h2>
<p>Most Muslim jurists and bioethicists today argue that abortion before 120 days of pregnancy is permissible on certain grounds and after this term in cases of mortal danger to the mother. When it comes to abortion, the Islamic legal principle of preservation of life is <a href="https://doi.org/10.1111/jore.12350">universally interpreted to mean the mother’s life</a>. Other grounds for abortion vary depending on school of thought but include health concerns for mother or fetus and sometimes include unintended pregnancy, depending on the circumstances of how the pregnancy came about.</p>
<p>Since maternal health can be a nebulous category, acceptance of mental health reasons for abortion may depend on whether people take mental health itself seriously. Concerns might include the mental capacity of a mother to care for herself or a child, or potential suicidal thoughts that put the mother’s life at risk.</p>
<p>Financial affordability is generally frowned upon as a reason for <a href="https://corpus.quran.com/wordbyword.jsp?chapter=17&verse=31">abortion because God is seen as provider</a>, but still accepted in some schools of thought, as the tradition generally promotes mercy above else. </p>
<p>Regardless of contemporary jurists’ positions on the subject, however, Muslims who pursue abortion often do so <a href="https://doi.org/10.1111/jore.12350">based on their broad Islamic understanding of God’s compassion</a> rather than in consultation with religious authorities who might act as gatekeepers.</p>
<h2>American Muslims post-Dobbs</h2>
<p>Part of Islamic discourse’s nuance about abortion is the result of a long relationship between medicine and Islamic thought. For American Muslims, that history is overshadowed by the U.S. Supreme Court upholding the heavy dominance and influence of one Christian view as the only American view on abortion.</p>
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<a href="https://images.theconversation.com/files/472646/original/file-20220705-20-g1jvzs.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A 13th century folio showing a man with a beard and a turban giving herb to a person seated in front of him." src="https://images.theconversation.com/files/472646/original/file-20220705-20-g1jvzs.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/472646/original/file-20220705-20-g1jvzs.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=844&fit=crop&dpr=1 600w, https://images.theconversation.com/files/472646/original/file-20220705-20-g1jvzs.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=844&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/472646/original/file-20220705-20-g1jvzs.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=844&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/472646/original/file-20220705-20-g1jvzs.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1061&fit=crop&dpr=1 754w, https://images.theconversation.com/files/472646/original/file-20220705-20-g1jvzs.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1061&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/472646/original/file-20220705-20-g1jvzs.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1061&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Folio from an Arabic manuscript of the Greek doctor Dioscorides, De materia medica, 1229.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Arabischer_Maler_des_Kr%C3%A4uterbuchs_des_Dioskurides_004.jpg">The Yorck Project (2002), distributed by Directmedia Publishing GmbH via Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>There is often a global assumption, which is held by many Muslims as well, that Muslim rules about gender and women’s rights are stricter than dominant Christian American ones. There have been many <a href="https://www.sfchronicle.com/opinion/openforum/article/abortion-bans-religion-17259119.php">problematic comparisons of the Dobbs decision and Sharia</a>. Some have called it “Christian Sharia” to characterize the ruling and abortion bans nationwide as religious, yet in doing so <a href="https://religiondispatches.org/please-stop-using-islam-to-critique-the-abortion-ban-it-simply-excuses-the-very-christian-very-white-roots-of-anti-choice-movements/">they draw on anti-Muslim sentiment</a> and stereotypes of Islam as uniquely gender oppressive. </p>
<p>When American Muslims themselves mirror evangelical Christian views on abortion, however, it may be a form of virtue signaling or out of ignorance of Muslims’ rich historical relationship with medicine.</p>
<p>Even in so-called religiously conservative Muslim countries, such as Saudi Arabia and Iran, <a href="https://doi.org/10.1016/S0968-8080(06)29279-6">laws on abortion are much more liberal</a> than in U.S. states banning abortion. Legally, not only is the life of the mother always prioritized, but because the idea that ensoulment occurs at 120 days is taken seriously, abortion before that point may, and often does, take place in a variety of circumstances such as rape, serial births, mental health issues, untimeliness of pregnancy, etc.</p>
<p>Many American Muslims are speaking in support of the right to abortion. Organizations such as the <a href="https://www.ambalegal.org/">American Muslim Bar Association</a>, <a href="https://hearttogrow.org/">Heart to Grow</a> and <a href="https://muslimadvocates.org/">Muslim Advocates</a> have issued <a href="https://www.ambalegal.org/ambainthenews/the-islamic-principle-of-rahma-a-call-for-reproductive-justice">statements</a> about abortion in Islam and published information on <a href="https://www.washingtonpost.com/religion/muslims-are-finding-their-place-in-americas-abortion-debate/2022/06/17/bae7fc12-ee8a-11ec-9f90-79df1fb28296_story.html">American Muslims’ rights to abortion</a>. The one prevailing commonality among these and diverging Islamic views on abortion is the Islamic concept of God’s mercy and compassion.</p><img src="https://counter.theconversation.com/content/184534/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Zahra Ayubi does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Islamic views on abortion are based on diverse interpretations of what’s right and wrong when it comes to the body.Zahra Ayubi, Associate Professor of Religion, Dartmouth CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1859362022-07-01T12:16:38Z2022-07-01T12:16:38ZMany anti-abortion activists before Roe were liberals who were inspired by 20th-century Catholic social teaching<figure><img src="https://images.theconversation.com/files/471951/original/file-20220630-16-une4wi.jpg?ixlib=rb-1.1.0&rect=26%2C0%2C2964%2C1985&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A 1973 photo shows an estimated 5,000 people, women and men, marching around the Minnesota Capitol building protesting the U.S. Supreme Court's Roe v. Wade decision.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/MINNEAPOLISANTIABORTIONRALLY/4483f8b574e4da11af9f0014c2589dfb/photo?Query=Minnesota%20Capitol%20building%201973&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=1&currentItemNo=0">AP Photo</a></span></figcaption></figure><p>The <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Supreme Court decision</a> reversing Roe v. Wade’s protection for abortion rights was a predictably partisan ruling. All of the justices appointed by Republican presidents voted to uphold the Mississippi law restricting abortion, while all three appointed by Democratic presidents dissented. </p>
<p>In keeping with this partisan trend, the <a href="https://fortune.com/2022/06/24/abortion-laws-by-state/">states that are currently restricting abortion</a> are in the Republican strongholds of the South, Midwest, Great Plains and Mountain West. <a href="https://www.kff.org/womens-health-policy/issue-brief/state-actions-to-protect-and-expand-access-to-abortion-services/">Those that are protecting abortion access</a> are Democratic and are heavily concentrated in the Northeast and the West Coast. </p>
<p>But that was not the case at the time of the landmark Roe v. Wade ruling in 1973. Both before and immediately after the Roe v. Wade decision, many prominent Republicans, such as <a href="https://www.whitehousehistory.org/betty-ford-activist-first-lady">first lady Betty Ford</a> and <a href="https://www.nytimes.com/1970/04/12/archives/rockefeller-signing-abortion-bill-credits-womens-groups.html">New York Gov. and later Vice President Nelson Rockefeller</a>, supported abortion rights. At the same time, some liberal Democrats spoke out against abortion rights, including <a href="https://www.baltimoresun.com/bs-mtblog-2009-08-kennedy_abortion_catholic-story.html">Sen. Edward M. Kennedy</a>, vice presidential candidate <a href="https://www.catholicnewsagency.com/news/21790/sargent-shriver-remembered-for-public-service-and-pro-life-stand">Sargent Shriver</a> and his wife <a href="https://www.nytimes.com/2009/08/31/opinion/31douthat.html">Eunice Kennedy Shriver</a>, as well as civil rights activist <a href="https://www.washingtonpost.com/archive/opinions/1988/05/21/jacksons-reversal-on-abortion/dd9e1637-020d-447b-9329-95ec67e41fd5/">Jesse Jackson</a>.</p>
<p>The anti-abortion movement was <a href="https://currentpub.com/2021/05/24/texas-and-massachusetts-a-tale-of-two-states/">strongest in the heavily Catholic, reliably Democratic states of the Northeast</a>, and its supporters believed that their campaign for the rights of the unborn accorded well with the liberal principles of the Democratic Party. </p>
<p>When I researched the early history of the anti-abortion movement for my book “<a href="https://global.oup.com/academic/product/defenders-of-the-unborn-9780199391646?cc=us&lang=en&">Defenders of the Unborn: The Pro-Life Movement before Roe v. Wade</a>,” one surprising finding was that the pre-Roe anti-abortion movement was filled with liberal Democrats who had supported the federal anti-poverty initiatives associated with President <a href="https://www.loc.gov/classroom-materials/united-states-history-primary-source-timeline/great-depression-and-world-war-ii-1929-1945/franklin-delano-roosevelt-and-the-new-deal/">Franklin D. Roosevelt’s New Deal</a> in the 1930s and <a href="https://obamawhitehouse.archives.gov/1600/presidents/lyndonbjohnson">President Lyndon Johnson’s social programs in the 1960s</a>. They wanted to couple abortion restrictions with additional efforts to fight poverty and expand government-funded health care. </p>
<h2>Catholic and Democrat</h2>
<p>Most of the pre-Roe anti-abortion activists in the United States were inspired by <a href="https://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_const_19651207_gaudium-et-spes_en.html">20th-century Catholic social teaching</a> that connected the right to life for the unborn with a larger ethic of concern for the less fortunate. Like the <a href="https://www.americamagazine.org/politics-society/2020/10/13/explainer-history-catholic-vote-united-states-republican-democrat">majority of Catholic voters</a> at the time, many were Democrats, and they hoped that a party that championed the poor would likewise be interested in protecting fetal life. </p>
<p>Many of them, in keeping with the teachings of their church, <a href="https://pubmed.ncbi.nlm.nih.gov/7286166/">held conservative views on issues of sex and reproduction</a>. They also, in keeping with <a href="https://www.usccb.org/upload/economic_justice_for_all.pdf">Catholic social teaching</a>, believed that the state had a responsibility to care for the poorest of its citizens and therefore supported liberal Democratic economic initiatives. </p>
<p>Many of these abortion opponents, including the liberal Republican <a href="https://www.archbalt.org/pro-life-anti-war-hatfield-had-high-regard-for-and-from-catholics/">Sen. Mark Hatfield</a>, an evangelical Baptist, and the Lutheran minister <a href="https://www.thepublicdiscourse.com/2019/01/48442/">Richard John Neuhaus</a>, who later converted to Catholicism, <a href="https://www.newspapers.com/image/190234924/">opposed the Vietnam War</a>, which they believed was a violation of the right to life, just as abortion was. </p>
<p>They did not want to condemn women who resorted to abortion, but instead hoped to offer them social assistance that would help them avoid that choice. “It’s not so much that the woman rejects the child as that society rejects the pregnant woman,” <a href="https://www.newspapers.com/image/184640443/?terms=%22edythe%20thompson%22&match=1">Edythe Thompson</a>, a member of the student organization Save Our Unwanted Life, which characterized itself as “<a href="https://www.mdpi.com/2077-1444/6/2/451/htm">an extremely liberal group</a>,” declared in 1971. </p>
<h2>Shift to the political right</h2>
<p>After Roe, the anti-abortion movement’s defense of fetal rights came into conflict with the feminist movement’s insistence that <a href="https://awpc.cattcenter.iastate.edu/2022/02/23/abortion-a-womans-civil-right-feb-16-1969/">abortion rights were nonnegotiable women’s rights</a>. Abortion opponents often argued that abortion harmed women emotionally and physically and gave an excuse to men to abandon their responsibilities as fathers. As the anti-abortion self-described feminist <a href="https://thelifeinstitute.net/learning-centre/abortion-facts/issues/equality-for-women#">Juli Loesch</a> phrased it in the 1980s, legalized abortion meant that “a man can use a woman, vacuum her out and she’s ready to be used again.” </p>
<p>But the women’s rights movement <a href="https://www.npr.org/2021/12/09/1062791724/activist-gloria-steinem-reflects-on-abortion-rights-as-they-hang-in-the-balance">did not accept this argument</a>, and after the mid-1970s, an <a href="https://www.washingtonpost.com/politics/2022/05/12/congress-abortion-moderates-crossover/">increasing number of liberal Democrats</a> did not either. The Democratic Party endorsed abortion rights in its <a href="https://www.presidency.ucsb.edu/documents/1976-democratic-party-platform">1976 platform</a> and strengthened this endorsement <a href="https://www.presidency.ucsb.edu/documents/1988-democratic-party-platform">in the 1980s</a>. </p>
<p>Although anti-abortion activists began their movement with a strong belief in an expanded social welfare state, their search for allies in their quest to protect fetal life through public law led them into an <a href="https://muse.jhu.edu/article/461985/pdf">alliance with conservative Republicans</a> who did not support an expanded social safety net. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/471706/original/file-20220629-20-nlvrw2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Ronald Reagan, wearing a black tie and black jacket, speaking to an audience." src="https://images.theconversation.com/files/471706/original/file-20220629-20-nlvrw2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/471706/original/file-20220629-20-nlvrw2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=420&fit=crop&dpr=1 600w, https://images.theconversation.com/files/471706/original/file-20220629-20-nlvrw2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=420&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/471706/original/file-20220629-20-nlvrw2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=420&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/471706/original/file-20220629-20-nlvrw2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=528&fit=crop&dpr=1 754w, https://images.theconversation.com/files/471706/original/file-20220629-20-nlvrw2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=528&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/471706/original/file-20220629-20-nlvrw2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=528&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Ronald Reagan addressing a Conservative Political Action Conference on March 3, 1984, in Washington, D.C.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ReaganAtConservativeConference/26d336aaf1f04492a3ccc85e2eee214b/photo?Query=reagan%20abortion&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=8&currentItemNo=1">AP Photo/Scott Stewart</a></span>
</figcaption>
</figure>
<p>Ronald Reagan’s support for a <a href="https://www.nytimes.com/1981/03/07/us/reagan-says-ban-on-abortion-may-not-be-needed.html">proposed anti-abortion constitutional amendment</a> that would have banned abortion nationwide won plaudits from anti-abortion activists across the political spectrum. </p>
<p>Although Cardinal Joseph Bernardin – the archbishop of Chicago – and other political liberals in the anti-abortion movement <a href="https://www.nytimes.com/1983/12/07/nyregion/excerpts-from-cardinal-bernardin-s-appeal-for-a-consistent-ehtic-of-life.html">criticized the Reagan administration’s nuclear arms buildup</a>, politically conservative opponents of abortion generally did not. The nation’s largest anti-abortion organization, the National Right to Life Committee, used its political action committee to <a href="https://yalebooks.yale.edu/book/9780300260144/dollars-for-life/">raise money</a> for any candidates who would vote to restrict abortion and said nothing about the Reagan administration’s stance on nuclear arms, because its leaders believed that the fastest route to reverse Roe v. Wade was to work with all politicians who opposed abortion rights. In practice, this meant that most of the candidates the organization supported were Republicans, especially after the early 1990s. </p>
<p>With only a few exceptions, anti-abortion activists largely abandoned the goal of expanding maternal and prenatal health care or treated this as a distant secondary priority to their main task of legally restricting abortion. </p>
<p>As late as 1995, the National Right to Life Committee <a href="https://www.ncbi.nlm.nih.gov/books/NBK230343/">expressed concern</a> that a conservative welfare reform that both President Bill Clinton and the Republican Congress supported would increase the abortion rate by restricting social assistance to low-income unmarried women who had additional children. By the 21st century, however, concerns about social welfare cuts were no longer on its agenda as it became increasingly <a href="https://time.com/6190861/roe-v-wade-supreme-court-politicized-abortion/">focused on shifting the Supreme Court to the right</a> to overturn Roe v. Wade. </p>
<p>The movement of large numbers of <a href="https://www.mdpi.com/2077-1444/6/2/451">Southern white evangelicals</a> into the anti-abortion movement also encouraged this conservative turn. Unlike many Northern Catholics, Southern white evangelicals had a deep antipathy to the social welfare state, and when they <a href="https://www.theatlantic.com/ideas/archive/2022/05/south-abortion-pro-life-protestants-catholics/629779/">became anti-abortion activists in the 1980s</a>, their political efforts focused almost entirely on abortion restrictions, not anti-poverty initiatives. </p>
<h2>The anti-abortion movement’s politics today</h2>
<p>By the time the Supreme Court reversed Roe, the anti-abortion movement had become so thoroughly allied with conservative Republican politics that it was difficult to imagine a time when liberal Democrats who supported an expanded welfare state were leaders in the movement. </p>
<p>But some abortion opponents are already <a href="https://www.christianitytoday.com/ct/2022/july-august/dalrymple-end-roe-v-wade-abortion-adoption-foster.html">realizing the limits of a strategy</a> that is narrowly focused on fighting abortion only through legal restrictions. They are <a href="https://religionnews.com/2022/06/07/why-believe-better-family-policies-will-reduce-abortions-well-theres-the-data/">calling for renewed efforts to secure family leave policies</a> and <a href="https://www.theatlantic.com/politics/archive/2022/06/anti-abortion-movement-dobbs-roe-overturned/661393/">economic assistance for low-income pregnant women</a>. </p>
<p>If some abortion opponents focus on this goal now that Roe v. Wade has been overturned, it will not be a new approach for the movement. Rather, it will be a revival of the original ethos that the founders of the movement proposed more than half a century ago, before Roe v. Wade was even issued.</p><img src="https://counter.theconversation.com/content/185936/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel K. Williams received a research fellowship from the James Madison Program at Princeton University in 2011-12.</span></em></p>A historian explains why the pre-Roe anti-abortion movement was filled with liberal Democrats who opposed the Vietnam War and supported the expansion of the welfare state.Daniel K. Williams, Professor of History, University of West GeorgiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1859382022-06-30T12:27:41Z2022-06-30T12:27:41ZWhen does the fetus acquire a moral status of a human being? The philosophy of ‘gradualism’ can provide answers<figure><img src="https://images.theconversation.com/files/471472/original/file-20220628-14614-ryc829.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3994%2C2646&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A patient seeking abortion services at the Women's Reproductive Clinic in Santa Teresa, New Mexico.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/dr-franz-theard-performs-a-sonogram-to-confirm-pregnancy-on-news-photo/1241524424?adppopup=true">Robyn Beck /AFP via Getty Images</a></span></figcaption></figure><p><a href="https://doi.org/10.1111/josp.12234">I lost my twins</a> in the second trimester of my first pregnancy. One fetus died around 14 weeks, and a month later I went into preterm labor – likely caused by the death of the first and an infection. I delivered the second twin, who appeared perfectly healthy on the ultrasound but was simply not old enough to survive, at 18½ weeks. </p>
<p>I grieved for years; these were some of my worst moments. </p>
<p>Ten years later, this experience is never far from my mind. But in the past few days since the <a href="https://theconversation.com/a-revolutionary-ruling-and-not-just-for-abortion-a-supreme-court-scholar-explains-the-impact-of-dobbs-185823">U.S. Supreme Court’s overturning of Roe v. Wade</a>, it’s also been a source of constant rumination. I think about the fact that the dilation and curettage, a common early abortion procedure I received to remove the placenta, is now banned when used to end a pregnancy involving a live fetus in almost all circumstances in <a href="https://www.theguardian.com/us-news/ng-interactive/2022/jun/28/tracking-where-abortion-laws-stand-in-every-state">six states</a>. If my body had not ended the pregnancy, I wonder – would medical professionals have been too <a href="https://www.npr.org/sections/health-shots/2022/06/24/1107316711/doctors-ethical-bind-abortion">scared of prosecution</a> to help me if <a href="https://www.npr.org/2022/02/28/1083536401/texas-abortion-law-6-months">the infection had worsened</a>? </p>
<p>But mostly, I think about what the Supreme Court ruling of June 24, 2022, will mean for abortion in the second trimester. With early abortion <a href="https://www.washingtonpost.com/politics/2022/06/24/abortion-state-laws-criminalization-roe/">banned or heavily restricted</a> in much of the country, there will <a href="https://www.nytimes.com/2022/05/06/opinion/abortion-provider-second-trimester-roe-v-wade.html">likely be a rise in second-trimester abortions</a>, as several commentators have pointed out.</p>
<p>From my personal perspective, it is morally abhorrent to deny anyone the ability to access abortion in their own state, no matter why they are seeking one. But the likelihood of more abortions being pushed into the second trimester, as pregnant individuals must overcome more barriers to access, also matters from the point of view of moral concern about fetuses. Many people feel that losing a pregnancy after a few months is more tragic than an early loss. The same is true for later versus earlier abortion.</p>
<p>As a <a href="https://www.geneseo.edu/philosophy/roth">moral philosopher</a>, I know that the <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/rutlj39&div=13&id=&page=">philosophical theory of gradualism</a> can <a href="https://www.bloomsbury.com/us/bloomsbury-companion-to-analytic-feminism-9781474297776/">help make sense</a> of this idea. Gradualism insists that the development of moral status is a gradual process that occurs continuously throughout gestation. That means that later fetuses have more status than earlier ones; later abortions too are more grave morally.</p>
<h2>Restrictions and delayed abortions</h2>
<p>Most abortions in the U.S. tend to occur quite early: <a href="https://www.cdc.gov/mmwr/volumes/70/ss/ss7009a1.htm">79.3% at 9 weeks or earlier and 92.7% before 14 weeks</a>. Compare that with 1974, just a year after the landmark decision in Roe v. Wade, <a href="https://pubmed.ncbi.nlm.nih.gov/7795180/">when 21% of abortions took place in the second trimester</a>.</p>
<p><a href="https://laterabortion.org/sites/default/files/lai_who_needs.pdf">Some second-trimester abortions are pursued</a> because of fetal anomalies that are not discovered until later; in other cases the pregnant individual might want or need to end the pregnancy because of changes in their health or life circumstances.</p>
<p>Other factors leading to second-trimester abortions, however, are policy-based. <a href="https://www.guttmacher.org/state-policy/explore/state-funding-abortion-under-medicaid#:%7E:text=First%20implemented%20in%201977%2C%20the,programs%20for%20low%2Dincome%20people">Restrictions</a> on <a href="https://www.guttmacher.org/sites/default/files/pdfs/pubs/2006/10/17/Contraception74-4-334_Finer.pdf">public funding</a> and mandated waiting periods can delay abortion care. Research shows that when states institute waiting periods of just 24 hours, <a href="https://pubmed.ncbi.nlm.nih.gov/10710701/">the rate of second-trimester abortion increases</a> for those relying on in-state providers. In 2015, Tennessee’s new waiting period led to a <a href="https://www.nber.org/system/files/working_papers/w26228/w26228.pdf">22% to 43%</a> increase in the second-trimester abortion rate.</p>
<p>Following the recent Supreme Court ruling, it is likely that delays will become the norm, since many pregnant individuals will have to travel <a href="https://www.nytimes.com/interactive/2022/06/24/upshot/dobbs-roe-abortion-driving-distances.html">hundreds of miles</a> to the closest provider. Having seen <a href="https://www.cnn.com/2022/02/24/politics/abortion-texas-clinics-surge/index.html">surges</a> of patients from Texas traveling to neighboring states, following the state’s adoption of a law banning abortion, clinics in blue states are <a href="https://www.npr.org/sections/health-shots/2022/05/19/1099875395/some-clinics-are-bracing-for-a-huge-influx-of-patients-if-roe-v-wade-is-overturn">preparing for influxes of out-of-state patients</a>. Providers have also witnessed the <a href="https://www.nytimes.com/2022/05/06/opinion/abortion-provider-second-trimester-roe-v-wade.html">later gestational age</a> at which abortion is obtained by those affected by Texas’ ban.</p>
<p>Thus, even if pregnant individuals from the South and Midwest can eventually access abortion in another state, they might be forced to continue the pregnancy for weeks or months. Second-trimester procedures have more <a href="https://doi.org/10.1016/S0968-8080(08)31379-2">health risks</a> than earlier terminations, they are more financially burdensome and there are fewer providers trained to offer them. Moreover, both <a href="https://doi.org/10.1016/j.socscimed.2017.05.001">providers</a> and <a href="https://muse.jhu.edu/article/236179/summary">patients</a> can find second-trimester abortion <a href="https://doi.org/10.1016/S0968-8080(08)31396-2">morally</a> and emotionally difficult. In fact, 91% of those having an abortion procedure in the second trimester <a href="https://www.guttmacher.org/sites/default/files/pdfs/pubs/2006/10/17/Contraception74-4-334_Finer.pdf">would have preferred to do so earlier</a>.</p>
<h2>What’s the moral status of a fetus?</h2>
<p>The morality of abortion depends in part on the moral status of a fetus. Full moral status – sometimes called “<a href="https://theconversation.com/what-is-personhood-the-ethics-question-that-needs-a-closer-look-in-abortion-debates-182745">personhood</a>” – refers to having the same rights and deserving the same moral consideration as any other human being. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/471473/original/file-20220628-14181-k3n6bj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An image of a growing fetus in a sonogram and a finger pointing at it." src="https://images.theconversation.com/files/471473/original/file-20220628-14181-k3n6bj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/471473/original/file-20220628-14181-k3n6bj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/471473/original/file-20220628-14181-k3n6bj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/471473/original/file-20220628-14181-k3n6bj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/471473/original/file-20220628-14181-k3n6bj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/471473/original/file-20220628-14181-k3n6bj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/471473/original/file-20220628-14181-k3n6bj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">When does a fetus acquire moral status?</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/woman-pointing-at-sonogram-royalty-free-image/74855234?adppopup=true">Klaus Tiedge/Tetra images via Getty</a></span>
</figcaption>
</figure>
<p>The most well-known views about the value of fetal life look for a specific moment or threshold of development at which a fetus achieves full moral status – what is known as a “bright line.” Most opponents of abortion tend to insist that conception is the bright line, while some abortion-rights supporters look to birth or <a href="https://www.ncjw.org/wp-content/uploads/2019/05/Judaism-and-Abortion-FINAL.pdf">the first breath</a>. </p>
<p>In the Roe era, <a href="https://www.washingtonpost.com/health/2021/12/01/what-is-viability/">viability</a>, the point at which a baby can survive outside of the womb, considered to be about 23 weeks, served as a legal bright line. Historically, “<a href="https://www.nytimes.com/2022/05/04/arts/roe-v-wade-abortion-history.html">quickening</a>,” when the pregnant individual feels fetal movement, at around four months or so, was thought to make all the moral difference.</p>
<p>In contrast to these bright lines, many philosophers look to <a href="https://plato.stanford.edu/entries/grounds-moral-status/#SophCognCapa">cognitive capacities</a>, such as <a href="https://doi.org/10.5840/monist197357133">consciousness, reasoning or self-awareness</a>, which do not develop until the third trimester or even after birth. These views share in common the idea that before the bright line fetuses are of little to no moral concern. </p>
<p>Gradualism rejects all of this. It holds that there is no such bright line. Instead, the development of moral status parallels the physical, cognitive and relational development of a fetus. Just after conception, a zygote has little more status than a sperm and egg. But as the embryo develops, its moral value increases slowly and steadily. </p>
<p>Thus, while a 6- or 8-week embryo might have very minimal status, a fetus at 32 or 35 weeks has virtually identical moral status to a newborn. Therefore, the earliest abortion is generally morally unconcerning to someone with a gradualist view, while third-trimester abortion is seen as a grave action that requires the strongest of moral reasons.</p>
<p>Meanwhile, midpregnancy fetuses are morally “<a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/rutlj39&div=13&id=&page=">in between</a>,” as gradualist philosopher <a href="https://kennedyinstitute.georgetown.edu/people/maggie-little/">Margaret Little</a> puts it. The idea is that by this point in pregnancy fetuses have not achieved full moral status, but they certainly have significant moral value – and ending their lives therefore requires moral justification.</p>
<p>Compared with the bright line views, gradualism has the benefit of making sense of the public’s strong support for early abortion, but <a href="https://news.gallup.com/poll/235469/trimesters-key-abortion-views.aspx">hesitating</a> about terminations in the second and third trimesters.</p>
<p>In the post-Roe era, the view also highlights the moral tragedy if state abortion bans targeting early abortion increase the number of second-trimester terminations. After all, from a gradualist view, early abortion is not seriously morally concerning, but second-trimester abortion is.</p><img src="https://counter.theconversation.com/content/185938/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amanda Roth does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A moral philosopher explains what’s at stake in second-trimester abortions – and why they’ll increase in a post-Roe world.Amanda Roth, Associate Professor of Philosophy and Women's & Gender Studies, State University of New York, College at GeneseoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1848132022-06-29T12:05:44Z2022-06-29T12:05:44ZA growing number of women give birth at Catholic hospitals, where they do not receive the same reproductive health options – including birth control – provided at other hospitals<figure><img src="https://images.theconversation.com/files/471255/original/file-20220627-24-2ifhs7.jpg?ixlib=rb-1.1.0&rect=0%2C64%2C6114%2C4006&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Research shows that short spacing between childbirth and another pregnancy comes with heightened health risks.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/woman-sees-a-positive-pregnancy-test-result-and-royalty-free-image/1386831922?adppopup=true">Aleksandr Kirillov/EyeEm via Getty Images</a></span></figcaption></figure><p>Now that the <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">U.S. Supreme Court has eliminated</a> the constitutional right to an abortion, access to birth control has taken on new urgency. By moving the decision about abortion access to states, the <a href="https://theconversation.com/roe-overturned-what-you-need-to-know-about-the-supreme-court-abortion-decision-184692">fall of Roe v. Wade</a> means that it will be even more important for people to be able to prevent an unwanted or mistimed pregnancy. </p>
<p>Given the health risks of having a rapid repeat pregnancy, avoiding pregnancy is especially critical for those who have recently given birth. But not all health care providers offer birth control to their patients.</p>
<p>Over the past two decades, the number of <a href="https://www.communitycatalyst.org/news/press-releases/new-report-finds-rapid-growth-of-catholic-health-systems#">Catholic hospitals in the U.S. has risen dramatically</a>. But it might come as a surprise to many people to learn that Catholic hospitals are not allowed to provide health care that is considered by their religious leaders to be “intrinsically immoral.” </p>
<p>The Catholic religion holds that sex should only occur within marriage and that while it should be performed for the good of the spouses, each act must be open to procreation. Because of this, the U.S. Conference of Catholic Bishops has published <a href="https://www.usccb.org/about/doctrine/ethical-and-religious-directives/upload/ethical-religious-directives-catholic-health-service-sixth-edition-2016-06.pdf">ethical and religious directives</a>, last updated in 2018, that prohibit Catholic hospitals from providing birth control, abortion and infertility treatments. There are no exceptions, even if the care is needed to protect a person’s life or health.</p>
<p>As a result, many people who want birth control before they leave the hospital after childbirth may not receive it. </p>
<p>One of the <a href="https://www.cdc.gov/reproductivehealth/contraception/mmwr/spr/intro.html">most effective methods of preventing pregnancy</a> is female sterilization, which is <a href="https://doi.org/10.1016/j.ajog.2021.12.261">used by 18% of women in the U.S.</a>. This permanent method of birth control usually consists of tubal ligation, a surgical procedure in which the fallopian tubes are cut or sealed. <a href="https://www.usccb.org/about/doctrine/ethical-and-religious-directives/upload/ethical-religious-directives-catholic-health-service-sixth-edition-2016-06.pdf">Catholic hospitals are not permitted</a> to perform this procedure. </p>
<p>However, many people are not even aware that they are choosing a Catholic hospital when they decide where they will deliver. Others do not have an option or may not realize that where they give birth might affect the reproductive treatment options available to them.</p>
<p><a href="https://cph.osu.edu/people/mgallo">As a sexual and reproductive health epidemiologist</a>, I have carried out <a href="https://scholar.google.com/citations?user=xOQDyI8AAAAJ&hl=en">research on contraception and abortion</a> in countries throughout the world, including in the U.S., over the past 20 years. Much of my research involves studying disparities in people’s use of birth control.</p>
<h2>Avoiding a Catholic hospital can be difficult</h2>
<p>As a result of hospital mergers and acquisitions, between 2001 and 2016 the number of Catholic acute care hospitals grew by 22%. Overall, about 17% of acute care hospital beds in the U.S. <a href="http://static1.1.sqspcdn.com/static/f/816571/27061007/1465224862580/MW_Update-2016-MiscarrOfMedicine-report.pdf">belong to Catholic hospitals</a>. </p>
<p>Some people attend a Catholic hospital because they have limited choices. There are 46 Catholic hospitals in the U.S. that are the <a href="http://static1.1.sqspcdn.com/static/f/816571/27061007/1465224862580/MW_Update-2016-MiscarrOfMedicine-report.pdf">sole providers of short-term acute hospital care</a> in their geographic area, including in Santa Fe, New Mexico; Grand Junction, Colorado; and Bellingham, Washington. Others might be limited in where their health insurance will cover their care. </p>
<p>Some people are not even aware that they are attending a Catholic hospital. A 2018 national survey asked adult women of reproductive age where they go for their reproductive care; 16% named a Catholic hospital. However, over one-third of the women who named a Catholic hospital <a href="https://doi.org/10.1016/j.contraception.2018.05.017">did not know that their hospital was Catholic</a>. Furthermore, those who were wrong about their hospital’s Catholic status described themselves as being “sure” or “very sure” about their incorrect response. </p>
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<figcaption><span class="caption">‘As U.S. hospitals are struggling, more and more are merging with Catholic institutions.’</span></figcaption>
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<p>In some cases, people might be unaware of their hospital’s status because its name does not sound religious. Also, people might not know that a Catholic network purchased their secular hospital and that their hospital is now required to follow its <a href="https://www.usccb.org/about/doctrine/ethical-and-religious-directives/upload/ethical-religious-directives-catholic-health-service-sixth-edition-2016-06.pdf">ethical and religious directives</a>. A 2017-2018 review of hospital websites found that <a href="https://doi.org/10.1001/jama.2019.0133">21% of Catholic hospitals did not explicitly disclose</a> their Catholic status on their website.</p>
<p>Even if people know that their hospital is Catholic, they might not know that attending a Catholic hospital could restrict the scope of care that they are able to receive. A large survey of women found that <a href="https://doi.org/10.1363/psrh.12118">most did not expect restrictions on care</a> at Catholic hospitals, especially for services viewed as less taboo than abortion. Respondents did not realize that Catholic hospitals are restricted in providing birth control, including female sterilization methods such as tubal ligation.</p>
<h2>The need for birth control after childbirth</h2>
<p>Using birth control after childbirth is critical, because people’s fertility returns quickly. Having at least 18 months of spacing between childbirth and a new pregnancy is important to protect the <a href="https://doi.org/10.1016/j.ajog.2006.05.055">pregnant person</a> and the <a href="https://doi.org/10.1016/j.ajog.2014.11.017">infant’s health</a>. </p>
<p>Short birth spacing increases the risks of adverse outcomes such as preeclampsia, preterm birth and health problems for the newborn infant. Because of the health risks, the U.S. Department of Health and Human Services recognized birth spacing as a high priority in the <a href="https://health.gov/healthypeople">2030 Healthy People Objectives</a>.</p>
<p>For people who do not want to have more pregnancies, immediately after delivery can be the most convenient time to have a tubal ligation. For this reason, about half of all tubal ligations <a href="https://doi.org/10.1097/aog.0b013e318262e354">are performed after delivery</a>. <a href="https://doi.org/10.1016/j.ajog.2022.05.021">About 6.2% of deliveries</a> in the U.S. are followed by a tubal ligation. <a href="https://doi.org/10.1097/aog.0b013e3181f73eaa">Failing to receive a desired </a> postpartum tubal ligation increases the risk of having a rapid repeat pregnancy. </p>
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<figcaption><span class="caption">A tubal ligation seals off the fallopian tubes, which carry eggs to a person’s womb, in order to prevent pregnancy.</span></figcaption>
</figure>
<h2>Birth control use following delivery at Catholic hospitals</h2>
<p>Our team decided to investigate whether women who recently delivered at a Catholic hospital were less likely to be using birth control during the postpartum period compared to women who delivered at a non-Catholic hospital. </p>
<p>Even if <a href="https://www.usccb.org/about/doctrine/ethical-and-religious-directives/upload/ethical-religious-directives-catholic-health-service-sixth-edition-2016-06.pdf">ethical and religious directives</a> state that Catholic hospitals are not allowed to provide birth control, it is plausible that some hospitals might fail to enforce the rules or providers might find ways to work around them. For example, providers at Catholic hospitals might place an intrauterine device, or IUD, in a patient who desires one by justifying its use for noncontraceptive purposes. Or providers might perform an elective cesarean delivery in order to surreptitiously perform a tubal ligation. </p>
<p>My colleagues and I used survey data from the <a href="https://www.cdc.gov/prams/index.htm">Pregnancy Risk Assessment Monitoring System</a> from five states – Alaska, Illinois, Maine, Oregon and Wisconsin – over the period of 2015 to 2018. The Centers for Disease Control and Prevention and state health departments annually conduct this survey of women who gave birth in the last two to six months. We linked this survey data to birth certificates to know whether women had delivered at a Catholic or non-Catholic hospital.</p>
<p>Our study found that at two to six months postpartum, women who had delivered at a Catholic hospital were about <a href="https://doi.org/10.1363/psrh.12186">half as likely to have had female sterilization</a> as women who delivered at another type of hospital. This difference remained statistically significant after we adjusted for women’s age, race or ethnicity, education, insurance status and parity. </p>
<h2>Pregnancy carries health risks</h2>
<p>Legal abortion is <a href="https://theconversation.com/study-shows-an-abortion-ban-may-lead-to-a-21-increase-in-pregnancy-related-deaths-167610">much safer than childbirth in the U.S.</a>. Because people are <a href="https://doi.org/10.1097/aog.0b013e31823fe923">14 times more likely to die from pregnancy</a> than from a legal abortion, it is important that they are able to avoid an unintended pregnancy. </p>
<p>These studies illustrate the need for people to have access to the birth control method of their choice – a choice that is all the more important now that people have lost their constitutional right to an abortion.</p>
<p><em>Editor’s note: This story has been updated to clarify the Catholic religion’s stance on the purpose of sex; it holds that sex should only occur within marriage and be performed for the good of the spouses, but that each act must be open to procreation.</em></p><img src="https://counter.theconversation.com/content/184813/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Maria Gallo receives funding from Relias Media for consultant work and grant funding from the National Institutes of Health and non-profit foundations for research.</span></em></p>Many people do not realize they are delivering at a Catholic hospital, and others may not have a choice. But where one receives care has a profound impact on the birth control options they’re offered.Maria Gallo, Professor of Epidemiology, The Ohio State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1846192022-06-27T22:26:44Z2022-06-27T22:26:44ZWhy the Supreme Court’s football decision is a game-changer on school prayer<figure><img src="https://images.theconversation.com/files/471181/original/file-20220627-14-1wpxt0.jpg?ixlib=rb-1.1.0&rect=9%2C9%2C1013%2C671&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Joe Kennedy poses in front of the U.S. Supreme Court building after his legal case, Kennedy vs. Bremerton School District, was argued before the court on April 25, 2022.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-bremerton-high-school-assistant-football-coach-joe-news-photo/1393643656?adppopup=true">Win McNamee/Getty Images News via Getty Images</a></span></figcaption></figure><p>The U.S. Supreme Court has <a href="https://www.law.cornell.edu/supct/html/99-62.ZO.html">consistently banned</a> <a href="https://www.law.cornell.edu/supct/html/90-1014.ZO.html">school-sponsored prayer</a> in <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep370/usrep370421/usrep370421.pdf">public schools</a>. At the same time, lower courts have generally forbidden public school employees from openly praying in the workplace, even if no students are involved. </p>
<p>Yet on June 27, 2022, the Supreme Court effectively gave individual employees’ prayer the thumbs up – potentially ushering in more religious activities in public schools.</p>
<p>In <a href="https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf">Kennedy v. Bremerton School District</a> – the Supreme Court’s first case directly addressing the question – the court ruled that a school board in Washington state violated a coach’s rights by not renewing his contract after he ignored district officials’ directive to stop kneeling in silent prayer on the field’s 50-yard line after games. He claimed that the board violated his First Amendment rights to freedom of speech and freedom of religion, and the Supreme Court’s majority agreed 6-3. The coach <a href="https://abcnews.go.com/Sports/high-school-football-coach-lost-job-praying-field/story?id=92113822&utm_source=Pew+Research+Center&utm_campaign=de3b036ce8-EMAIL_CAMPAIGN_2022_10_26_01_29&utm_medium=email&utm_term=0_3e953b9b70-de3b036ce8-400258905">will be reinstated to his position</a> by March 2023, according to court documents filed on Oct. 25, 2022.</p>
<p>From my perspective as a <a href="https://udayton.edu/directory/education/eda/russo_charles.php">specialist in education law</a>, the case is noteworthy because the court has now decided that public school employees can pray when supervising students. It also helps close out a Supreme Court term when the current justices’ increasing interest in claims of religious discrimination was on full display, with another “church-state” case <a href="https://theconversation.com/state-funds-for-students-at-religious-schools-supreme-court-says-yes-in-maine-case-but-consequences-could-go-beyond-184618">decided in religious plaintiffs’ favor</a> just last week. And on June 24, 2022, the court <a href="https://theconversation.com/a-revolutionary-ruling-and-not-just-for-abortion-a-supreme-court-scholar-explains-the-impact-of-dobbs-185823">overturned Roe v. Wade</a>. The debate over abortion is often framed in terms of religion, even though the court’s holding focused on other constitutional grounds.</p>
<h2>Facts of the case</h2>
<p>In 2008, Kennedy, a self-described Christian, worked as head coach of the junior varsity football team and assistant coach of the varsity team at Bremerton High School. He began to kneel on the 50-yard line after games, regardless of the outcome, offering a brief, quiet prayer of thanks.</p>
<p>While Kennedy first prayed alone, eventually most of the players on his team, and then members of opposing squads, joined in. He later <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/18/20-35222.pdf">added inspirational speeches</a>, causing some parents and school employees to voice concerns that players would feel compelled to participate.</p>
<p>School officials directed Kennedy to stop praying on the field because they feared that his actions could put the board at risk of violating the First Amendment. The government is prohibited from making laws “<a href="https://www.law.cornell.edu/wex/establishment_clause">respecting an establishment of religion, or prohibiting the free exercise thereof</a>” – language known as the establishment clause, which is often understood as meaning public officials cannot promote particular faiths over others.</p>
<figure class="align-center ">
<img alt="A man in a blue shirt sits as he holds up a color photograph of a young man in a football uniform." src="https://images.theconversation.com/files/471208/original/file-20220627-18-ulkozd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/471208/original/file-20220627-18-ulkozd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/471208/original/file-20220627-18-ulkozd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/471208/original/file-20220627-18-ulkozd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/471208/original/file-20220627-18-ulkozd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/471208/original/file-20220627-18-ulkozd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/471208/original/file-20220627-18-ulkozd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Paul Peterson holds a photo of his son, who played football for Bremerton High School in 2010. Peterson participated in filing a friend-of-the-court brief in support of the district’s case against Joe Kennedy.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PrayingFootballCoach/7b02f7bcc12d4d4280c65368ca01246c/photo?Query=kennedy%20bremerton&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=7&currentItemNo=5">AP Photo/Ted S. Warren</a></span>
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<p>In September 2015, school officials notified the coach that he could continue delivering his inspirational speeches after games, but they had to remain secular. Although students could pray, he could not. Even so, a month later, <a href="https://www.cnn.com/2015/10/17/us/washington-football-coach-joe-kennedy-prays/index.html">Kennedy resumed his on-field prayers</a>. He had publicized his plans to do so and was joined by players, coaches and parents, while reporters watched.</p>
<p>Bremerton’s school board offered Kennedy accommodations to allow him to pray more privately on the field after the stadium emptied out, which he rejected. At the end of October, officials <a href="https://www.cnn.com/2015/10/29/us/washington-football-coach-joe-kennedy-prays/index.html">placed him on paid leave</a> for violating their directive and eventually chose not to renew his one-year contract. Kennedy <a href="https://www.deseret.com/2016/8/15/20593931/fired-for-praying-on-field-football-coach-sues">filed suit</a> in August 2016.</p>
<h2>Two complicated clauses</h2>
<p>Kennedy raised two major claims: that the school board violated his rights to freedom of speech and also to the free practice of his religion. However, the Ninth Circuit <a href="https://casetext.com/case/kennedy-v-bremerton-sch-dist">twice rejected</a> <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/18/20-35222.pdf">these claims</a> because it concluded that when he prayed, he did so as a public employee whose actions could have been viewed as having the board’s approval. Moreover, the Ninth Circuit agreed with the school board that the district had a compelling interest to avoid violating the establishment clause.</p>
<p>During <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/21-418_3dq3.pdf">oral arguments</a> at the Supreme Court, though, it was clear that the majority of justices were <a href="https://www.nytimes.com/2022/04/25/us/politics/supreme-court-prayer-football-coach.html">sympathetic to Kennedy’s claims of religious discrimination</a> and more concerned with his rights to religious freedom than the board’s concern about violating the establishment clause.</p>
<p>Writing <a href="https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf">for the court</a>, Justice Neil Gorsuch noted that “a proper understanding of the Amendment’s Establishment Clause [does not] require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.” </p>
<p>One aspect of Kennedy with potentially far-reaching consequences is that it largely repudiates the three major tests the court has long applied in cases involving religion.</p>
<p>The first, <a href="https://www.law.cornell.edu/supremecourt/text/403/602">Lemon v. Kurtzman</a>, was a 1971 dispute about aid to faith-based schools in Pennsylvania. The Supreme Court’s decision required that interactions between the government and religion must pass a three-pronged test in order to avoid violating the establishment clause. First, an action must have a secular legislative purpose. In addition, its principle or primary effect must neither advance nor inhibit religion, and it cannot result in excessive entanglement between the government and religion. Regardless of whether one supported or opposed the “Lemon test,” it was often unwieldy.</p>
<p>A decade later, in <a href="https://www.law.cornell.edu/supremecourt/text/465/668">Lynch v. Donnelly</a> – a case about a Christmas display on public property in Rhode Island – the court determined that governmental actions cannot appear to endorse a particular religion.</p>
<p>Finally, in 1992’s <a href="https://www.law.cornell.edu/supremecourt/text/505/577&lang=en">Lee v. Weisman</a>, a dispute from Rhode Island about graduation prayer, the court wrote that subjecting students to prayer was a form of coercion.</p>
<p>The Supreme Court has backed away from the Lemon test for years. In 1993, Justice Antonin Scalia <a href="https://www.law.cornell.edu/supremecourt/text/508/384">caustically described it</a> as “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, […stalking] our Establishment Clause jurisprudence.”</p>
<p>Kennedy may have put the final nail in Lemon’s coffin, with <a href="https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf">Gorsuch writing</a> that the court should instead interpret the establishment clause in light of “historical practices and understandings.” He went on to remark that “this Court has long recognized as well that ‘secondary school students are mature enough’” to understand that their schools allowing someone freedom of speech, in order to avoid discrimination, does not mean officials are endorsing that view, let alone forcing students to participate.</p>
<h2>Moving forward</h2>
<p>In <a href="https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf">a lengthy dissent</a> almost as long as the opinion of the court, Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, expressed their serious reservations about the outcome. Setting the tone at the outset, Sotomayor chided the court for “paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion.” </p>
<p>The dissent echoed some points from the June 21, 2022, <a href="https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf">dissent in Carson v. Makin</a>, another high-profile case about religion and schools, where Sotomayor criticized the majority for dismantling “the wall of separation between church and state that the Framers fought to build.”</p>
<p>Kennedy v. Bremerton is unlikely to end disagreements over public employees’ prayer as free speech, or the tension between the free exercise and establishment clauses. </p>
<p>In fact, the case brings to mind the saying to be careful what one wishes for, because one’s wishes may be granted. By leaving the door open to more individual prayer in schools, the court may also open a proverbial can of worms. Will supporters who rallied behind a Christian coach be as open-minded if, or when, other groups whose values differ from their own wish to display their beliefs in public?</p>
<p><em>Article updated on Oct. 26, 2022 to indicate that Kennedy will reportedly <a href="https://abcnews.go.com/Sports/high-school-football-coach-lost-job-praying-field/story?id=92113822&utm_source=Pew+Research+Center&utm_campaign=de3b036ce8-EMAIL_CAMPAIGN_2022_10_26_01_29&utm_medium=email&utm_term=0_3e953b9b70-de3b036ce8-400258905">be reinstated</a> to his position.</em></p><img src="https://counter.theconversation.com/content/184619/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Kennedy v. Bremerton, a case about a public school teacher’s prayer, helps close out a Supreme Court term in which religion was often in the spotlight.Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1857552022-06-24T16:55:45Z2022-06-24T16:55:45ZAmerica’s religious communities are divided over the issue of abortion: 5 essential reads<figure><img src="https://images.theconversation.com/files/470802/original/file-20220624-14-o8opah.jpg?ixlib=rb-1.1.0&rect=78%2C26%2C5638%2C3242&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Abortion rights advocates demonstrate in front of the U.S. Supreme Court in 2021, in Washington, D.C.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtAbortion/f9dd30d23ec6449588e1b043693f07f2/photo?Query=abortion&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=11307&currentItemNo=3">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p>Since the first indications that the U.S. Supreme Court could overturn the landmark Roe v. Wade ruling, following a leaked draft opinion on May 2, 2022, religious leaders from many denominations have been <a href="https://www.healthline.com/health-news/meet-the-religious-groups-fighting-to-save-abortion-access">working to preserve access to abortion care</a>, even as others <a href="https://www.catholicnewsagency.com/news/251143/us-bishops-urge-prayer-fasting-for-overturning-of-roe-v-wade-after-leak-of-abortion-draft-ruling">prayed for Roe to indeed be overruled</a>. A minister in Texas was among those working on coordinating abortion care, <a href="https://www.businessinsider.com/network-religious-leaders-abortions-roe-v-wade-clergy-consultation-service-2022-5">including flying women to New Mexico to get abortions</a>. </p>
<p>Religious communities in the U.S. have long been divided over the issue of abortion. A 2017 Pew Research Center survey found that <a href="https://www.pewresearch.org/fact-tank/2018/01/22/american-religious-groups-vary-widely-in-their-views-of-abortion/">57% of Americans were supportive</a> of legal abortion. A majority of those who identified as evangelical were opposed to abortion.</p>
<p>Before June 24, 2022, when the Supreme Court overturned Roe v. Wade, The Conversation asked several scholars to explain the multiple views across faith groups and also the differences within denominations. Here are five articles from our archives:</p>
<h2>1. Abortion rights as religious freedom</h2>
<p><a href="https://theconversation.com/profiles/steven-k-green-346301">Steven K. Green</a>, director of the Center for Religion, Law and Democracy at Willamette University, <a href="https://theconversation.com/religious-beliefs-give-strength-to-the-anti-abortion-movement-but-not-all-religions-agree-182500">explained why restricting abortion interferes with religious freedom</a>.</p>
<p>The strong opposition of some Christian churches, such as the Catholic Church or the Southern Baptist Convention, is based on their views about the time of “ensoulment,” the moment at which the soul is believed to enter the fetus. Conservative Christians believe this happens at the moment of conception.</p>
<p>Not all Christian denominations agree. As Green wrote, the United Church of Christ, for example, passed a resolution in 1981 that said “every woman must have the freedom of choice to follow her personal and religious convictions concerning the completion or termination of a pregnancy.” </p>
<p>Additionally, other faith groups such as Islam, Judaism, Buddhism and Hinduism have differing beliefs about ensoulment.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/religious-beliefs-give-strength-to-the-anti-abortion-movement-but-not-all-religions-agree-182500">Religious beliefs give strength to the anti-abortion movement – but not all religions agree</a>
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<h2>2. What Jewish texts say</h2>
<p>Judaism allows for abortion and even requires it when a woman’s health is endangered, according to <a href="https://www.ctschicago.edu/people/rachel-s-mikva/">Rachel Mikva</a>, professor of Jewish studies at Chicago Theological Seminary. The majority of foundational Jewish texts <a href="https://theconversation.com/there-is-more-than-one-religious-view-on-abortion-heres-what-jewish-texts-say-116941">assert that a fetus does not attain the status of personhood until birth</a>. </p>
<p>There is some difference of opinion among Orthodox rabbis, but there is room to consider diverse perspectives.</p>
<p>Overall, according to a 2017 Pew survey, <a href="https://www.pewresearch.org/fact-tank/2018/01/22/american-religious-groups-vary-widely-in-their-views-of-abortion/">83% of American Jews</a> believed that abortion should be legal in all or most cases. Even ultra-Orthodox leaders, as Mikva found, have resisted anti-abortion measures that do not allow religious exceptions. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/there-is-more-than-one-religious-view-on-abortion-heres-what-jewish-texts-say-116941">There is more than one religious view on abortion - here's what Jewish texts say</a>
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<h2>3. Hindu, Muslim and Buddhist views</h2>
<p>Beliefs from other faith traditions such as Buddhism, Hinduism and Islam also show that religions place ensoulment at different moments and <a href="https://theconversation.com/there-is-no-one-religious-view-on-abortion-a-scholar-of-religion-gender-and-sexuality-explains-184532">give it varying degrees of importance</a>, according to <a href="https://theconversation.com/profiles/samira-mehta-1109963">Samira Mehta</a>, assistant professor of women and gender studies and Jewish studies at University of Colorado, Boulder. </p>
<p>Muslim scholars and clerics, for example, have a range of positions on abortion. “Some believe abortion is never permitted, and many allow it until ensoulment, which is often placed at 120 days’ gestation, just shy of 18 weeks,” according to Mehta. In general, classical Islamic law sees legal personhood as beginning at birth, and many Muslim religious leaders therefore permit abortion to save the life of the mother. </p>
<p>Views in Hinduism and Buddhism are diverse. “Most Hindus believe in reincarnation, which means that while one may enter bodies with birth and leave with death, life itself does not, precisely, begin or end. Rather, any given moment in a human body is seen as part of an unending cycle of life – making the question of when life begins quite different than in Abrahamic religions,” wrote Mehta. For Buddhists, a decision about abortion is treated with compassion and considered to be a “moral choice,” depending on the circumstances. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/there-is-no-one-religious-view-on-abortion-a-scholar-of-religion-gender-and-sexuality-explains-184532">There is no one 'religious view' on abortion: A scholar of religion, gender and sexuality explains</a>
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<h2>4. Shift in views of Southern Baptists</h2>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/470800/original/file-20220624-20-hw0f9n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with a jacket that says SBC on its back stands during a meeting." src="https://images.theconversation.com/files/470800/original/file-20220624-20-hw0f9n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470800/original/file-20220624-20-hw0f9n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470800/original/file-20220624-20-hw0f9n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470800/original/file-20220624-20-hw0f9n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470800/original/file-20220624-20-hw0f9n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470800/original/file-20220624-20-hw0f9n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470800/original/file-20220624-20-hw0f9n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">People gathered for the Southern Baptist Convention’s annual meeting in Anaheim, Calif., in June 2022.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SouthernBaptists/9f7873e84aa34beea7843e277b147337/photo?Query=southern%20baptist&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=710&currentItemNo=15">AP Photo/Jae C. Hong</a></span>
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<p>Scholars have also pointed out how in conservative faith groups, beliefs have shifted over time. Scholar <a href="https://theconversation.com/profiles/susan-m-shaw-690928">Susan M. Shaw</a>, who has long studied the Southern Baptists, explained that they <a href="https://theconversation.com/the-history-of-southern-baptists-shows-they-have-not-always-opposed-abortion-183712">have not always been opposed to abortion</a>. </p>
<p>According to Shaw, the change in Southern Baptist views started in the 1980s, when a more conservative group took charge of the denomination. At that time a “resolution on abortion” was drafted that declared that “abortion ends the life of a developing human being” and called for legal measures “prohibiting abortion except to save the life of the mother.”</p>
<p>Additionally, as Shaw found, another “interesting shift” happened in that resolution – instead of referring to fetal life, as earlier resolutions did, the 1980 resolution called fetuses “unborn” or “pre-born” human life or “persons.” The fetus, as she wrote, “was no longer a developing organism dependent on a woman’s body, but rather it was a full human being with the same status and human rights as the women.” </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-history-of-southern-baptists-shows-they-have-not-always-opposed-abortion-183712">The history of Southern Baptists shows they have not always opposed abortion</a>
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<h2>5. Reproductive options in premodern Christianity</h2>
<p>Scholars have pointed out that among premodern Christians, too, views on abortion were more complex. <a href="https://theconversation.com/christian-attitudes-surrounding-abortion-have-a-more-nuanced-history-than-current-events-suggest-162560">According to religion scholar</a> <a href="https://theconversation.com/profiles/luis-josue-sales-1240033">Luis Josué Salés</a>, pregnancy prevention and termination methods thrived in premodern Christian societies, especially in the medieval Roman Empire. </p>
<p>Indeed, premodern Christians may have actively developed reproductive options for women, Salés found. Sixth-century Christian physician Aetios of Amida and Paulos of Aigina, who came a century later, were said to have provided instructions for performing abortions and making contraceptives. </p>
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<em>
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Read more:
<a href="https://theconversation.com/christian-attitudes-surrounding-abortion-have-a-more-nuanced-history-than-current-events-suggest-162560">Christian attitudes surrounding abortion have a more nuanced history than current events suggest</a>
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<p>In the U.S., the first abortion restrictions <a href="https://theconversation.com/religious-beliefs-give-strength-to-the-anti-abortion-movement-but-not-all-religions-agree-182500">were enacted only in the 1820s</a>. As Mehta aptly put it, “We tend to think of the religious response to abortion as one of opposition, but the reality is much more complicated.”</p><img src="https://counter.theconversation.com/content/185755/count.gif" alt="The Conversation" width="1" height="1" />
Scholars explain why many see abortion access as a religious freedom issue and what the views of different faiths are on ‘ensoulment,’ the point at which the soul is believed to enter the fetus.Kalpana Jain, Senior Religion + Ethics Editor/ Director of the Global Religion Journalism InitiativeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1846182022-06-22T01:56:20Z2022-06-22T01:56:20ZState funds for students at religious schools? Supreme Court says ‘yes’ in Maine case – but consequences could go beyond<figure><img src="https://images.theconversation.com/files/470121/original/file-20220621-7816-k6m80x.jpg?ixlib=rb-1.1.0&rect=26%2C9%2C996%2C672&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Students walk by security fences installed in front of the Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/student-tour-groups-walk-past-the-u-s-supreme-court-news-photo/1404048984?adppopup=true">Anna Moneymaker/Getty Images News via Getty Images</a></span></figcaption></figure><p>For nearly three-quarters of a century, one issue in education has come up before the Supreme Court more than any other: <a href="https://ecommons.udayton.edu/eda_fac_pub/71/">disputes over religion</a>.</p>
<p><a href="https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf">Carson v. Makin</a>, a case about Maine’s tuition assistance program for students in districts without high schools of their own, continues the pattern – with potential consequences for schools, families and courts across the country.</p>
<p>On June 21, 2022, the court ruled that parents in rural districts lacking public high schools, but who receive state aid to send their children to private schools instead, can use that money for tuition at schools with faith-based curricula. In <a href="https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf">a 6-3 order</a>, the court held that Maine’s requirement that tuition assistance payments be used at “nonsectarian” schools violated <a href="https://www.law.cornell.edu/wex/free_exercise_clause">the free exercise clause</a> of the First Amendment because parents could not send their children to the schools of their choice.</p>
<p>In two <a href="https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf">recent cases</a> on <a href="https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf">similar issues</a>, the court ruled in favor of families. Carson continues this trend of allowing more public support to students in faith-based schools, which has been developing for <a href="https://www.law.cornell.edu/supct/html/96-552.ZS.html">more than 20 years</a>.</p>
<p>To the <a href="https://ballotpedia.org/School_choice_in_the_United_States">school choice</a> movement – which advocates affording families more options beyond traditional public schools, but having the government help foot the bill – Carson represents a chance for more parents to give their children an education in line with their religious beliefs. </p>
<p>Opponents fear that cases such as Carson could establish a precedent of requiring taxpayer dollars to fund religious teachings. Based on its most recent judgments, many legal analysts maintain that the current court <a href="https://theconversation.com/how-the-supreme-court-found-its-faith-and-put-religious-liberty-on-a-winning-streak-158509">is increasingly sympathetic</a> to claims that religious liberties are being threatened but, in so doing, is creating too close of <a href="https://www.washingtonpost.com/education/2020/06/30/how-supreme-courts-decision-religious-schools-just-eroded-separation-between-church-state/">a relationship between religion and government</a>.</p>
<h2>SCOTUS’ shift in thought</h2>
<p>Religion in schools emerged as a significant issue at the Supreme Court starting in 1947’s <a href="https://www.oyez.org/cases/1940-1955/330us1">Everson v. Board of Education</a>, when the justices upheld a New Jersey law allowing school boards to reimburse parents for transportation costs to and from schools, including ones that are religiously affiliated. </p>
<p>According to <a href="https://constitution.congress.gov/constitution/amendment-1/">the First Amendment</a>, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” – an idea courts often interpreted as requiring “a wall of separation between church and state.” In Everson, however, the Supreme Court upheld the law as not violating the First Amendment because children, not their schools, were the primary beneficiaries.</p>
<p>Everson signaled the start of the “<a href="https://sk.sagepub.com/reference/educationlaw/n62.xml">child benefit test</a>,” an evolving legal concept that I have written about in <a href="https://udayton.edu/directory/education/eda/russo_charles.php">my work on education law</a>. According to this test, which has guided many of the court’s decisions about religion, money and education, children who attend faith-based schools are the primary beneficiaries of the state aid they receive, rather than their schools. In other words, this logic reasons that the government is not directly supporting particular religions.</p>
<figure class="align-center ">
<img alt="A yellow school bus stops, with its 'Stop' sign visible, along a country road in autumn." src="https://images.theconversation.com/files/470111/original/file-20220621-7816-jw2nyz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470111/original/file-20220621-7816-jw2nyz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470111/original/file-20220621-7816-jw2nyz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470111/original/file-20220621-7816-jw2nyz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470111/original/file-20220621-7816-jw2nyz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=498&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470111/original/file-20220621-7816-jw2nyz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=498&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470111/original/file-20220621-7816-jw2nyz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=498&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Just how far can public funds go to support students in religious schools?</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/school-bus-on-country-road-royalty-free-image/AB07269?adppopup=true">Stephen Simpson/Stone via Getty Images</a></span>
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<p>In recent years, though, the court has expanded the boundaries of what aid is allowed – as it has now done again with Carson. The decision extends the Supreme Court’s two most recent judgments on aid to students in faith-based schools: In 2017’s <a href="https://www.oyez.org/cases/2016/15-577">Trinity Lutheran Church of Columbia v. Comer</a>, the Supreme Court reasoned that states cannot deny religious people or religious institutions generally available public benefits simply because they are religious. Three years later, in <a href="https://www.oyez.org/cases/2019/18-1195">Espinoza v. Montana Department of Revenue</a>, the court decided the state’s tuition tax credit program cannot bar private, faith-based “schools from public benefits solely because of the religious character of the schools.”</p>
<h2>Mainers’ education</h2>
<p><a href="https://www.maine.gov/legis/const/">Maine’s Constitution</a> mandates the creation of public schools. But many rural towns don’t have <a href="https://www.maine.gov/doe/sites/maine.gov.doe/files/inline-files/SAU2020_21Map_FINAL.pdf">their own secondary schools</a>: In fact, of the 260 “school administrative units” in Maine, more than half <a href="https://www.supremecourt.gov/DocketPDF/20/20-1088/197324/20211022151803212_Brief%20of%20Respondent%2010%2022%2021.pdf">lack a secondary school</a>. </p>
<p>In areas without access to public schools, Maine law allowed students to attend other public or private schools at public expense, but not faith-based ones. <a href="https://www.mainelegislature.org/legis/statutes/20-a/title20-Asec2951.html">The state requires</a> approved schools to be nonsectarian, “in accordance with the First Amendment of the United States Constitution.”</p>
<p>Carson v. Makin began in 2018 when three sets of parents unsuccessfully filed suit on behalf of their children, arguing that the rule discriminated on the basis of religion. The <a href="https://www.govinfo.gov/app/details/USCOURTS-med-1_18-cv-00327/summary">federal trial court</a> in Maine ruled in favor of the state, affirming that its tuition aid requirements did not violate the rights of the parents or their children. On appeal, the First Circuit unanimously affirmed <a href="https://casetext.com/case/carson-v-makin">in favor of the state</a>, rejecting all the parental claims.</p>
<h2>The decision</h2>
<p>When, as the parents in Carson alleged, state actions limit fundamental rights such as free exercise of religion, courts apply what is called “<a href="https://www.law.cornell.edu/wex/strict_scrutiny">strict scrutiny</a>,” meaning that public officials must prove they have a “compelling interest” in restricting such a right. When the Supreme Court applies “strict scrutiny,” as it did in Carson, state restrictions typically fail.</p>
<p><a href="https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf">Writing for the court</a>, Chief Justice John Roberts declared that the Maine program “effectively penalizes the free exercise of religion.” Relying on Trinity Lutheran and Espinoza, he wrote that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.” He also declared that a state’s interest in not violating the establishment clause does not justify excluding people from a public benefit because they are religious.</p>
<p>The previous recent cases dealt with schools’ status as religious schools, rather than whether their actual teaching is religious. <a href="https://law.justia.com/cases/federal/appellate-courts/ca1/19-1746/19-1746-2020-10-29.html">Lower courts’ decisions</a> about Carson, on the other hand, looked at how religious schools would actually use the funds: whether they would provide an equivalent education to the one that Maine’s public schools deliver.</p>
<p>But the Supreme Court held that both “status-based” and “use-based” refusals to allow state aid for students at religious schools are “offensive to the Free Exercise Clause.”</p>
<p>As often occurs in such high-profile cases, the dissenters disagreed strongly. Justice Stephen Breyer, joined in full by Justice Elena Kagan and partially by Justice Sonia Sotomayor, wrote of “an increased risk of religiously based social conflict when government promotes religion in the public school system.”</p>
<p>Dissenting separately, Sotomayor expressed concern that Carson is “leading us to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. Today, the Court leads us to a place where separation of church and state becomes a <a href="https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf">constitutional violation</a>.”</p>
<p>Carson is unlikely to end disagreements over public funds and religion – or religion and schools more generally. But two clear points emerge in Carson’s wake: the court’s ongoing support for the “child benefit test” and its continuing to lower the wall of separation between church and state in education.</p>
<p><em>This is an updated version of <a href="https://theconversation.com/money-schools-and-religion-a-controversial-combo-returns-to-the-supreme-court-168232">an article</a> originally published on Nov. 29, 2021.</em></p><img src="https://counter.theconversation.com/content/184618/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Once again, the court has expanded the legal ways that public funds can be used for students at religious institutions.Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1837122022-06-17T14:20:16Z2022-06-17T14:20:16ZThe history of Southern Baptists shows they have not always opposed abortion<figure><img src="https://images.theconversation.com/files/469029/original/file-20220615-23-w8236r.jpg?ixlib=rb-1.1.0&rect=119%2C25%2C5561%2C3742&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Attendees pray during a worship service at the Southern Baptist Convention's annual meeting in Anaheim, California, on June 14, 2022.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SouthernBaptists/be5739958c124002a67604c14f29ec0b/photo?Query=southern%20baptist%20convention&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=425&currentItemNo=13">AP Photo/Jae C. Hong</a></span></figcaption></figure><p>With an abortion case now before the U.S. Supreme Court, the Southern Baptist Convention of June 2022 encouraged its members <a href="https://sbcannualmeeting.net/wp-content/uploads/2022/06/2022-SBC-Resolutions.pdf">to pray for the overturning</a> of Roe v. Wade, the 1973 decision that made abortion legal in the U.S. </p>
<p>The resolution, “On Anticipation of a Historic Moment in the Pro-Life Movement,” was not without controversy, however. A faction of Southern Baptists who consider themselves “abortion <a href="https://www.christianpost.com/news/southern-baptists-debate-how-to-best-be-pro-life.html">abolitionists</a>” argued the Convention should also call for the <a href="https://www.msn.com/en-us/news/us/live-updates-effort-to-abolish-southern-baptist-public-policy-arm-over-abortion-debate-fails/ar-AAYugOA">criminalizing</a> of people who have abortions as murderers. Instead, the resolution calls on Southern Baptists to stand with and pray for “abortion-vulnerable women.”</p>
<p>The Southern Baptist Convention, the largest Protestant denomination in the U.S., and often referred to as the “<a href="https://www.nytimes.com/2022/06/14/us/southern-baptists-convention.html">bellwether for conservative Christianity</a>,” has long voiced opposition to abortion. <a href="https://www.pewresearch.org/religion/religious-landscape-study/religious-denomination/southern-baptist-convention/views-about-abortion/#beliefs-and-practices">A Pew survey</a> in 2014 found that two-thirds of Southern Baptists believed abortion should be illegal in most or all cases. In 2021, the Convention passed a <a href="https://www.sbc.net/resource-library/resolutions/on-abolishing-abortion/">resolution</a> stating “unequivocally that abortion is murder” and calling for “abolishing abortion immediately, without exception or compromise.” </p>
<p>But Southern Baptists have not always been opposed to abortion.</p>
<p>The Convention expressed support for abortion in certain cases throughout the 1970s, until a more conservative wing seized control in the 1980s. I was a Southern Baptist at the time, and <a href="https://liberalarts.oregonstate.edu/users/susan-shaw">I now study the denomination</a>. I understand the Convention’s stance against abortion as a reflection of leaders’ conservative beliefs about women, gender and sexuality. </p>
<h2>Support for abortion</h2>
<p>Early on, many evangelicals, including Southern Baptists, saw opposition to legal abortion as a “<a href="https://religiondispatches.org/the-evangelical-abortion-myth-an-excerpt-from-bad-faith/">Catholic issue</a>.” </p>
<p><a href="https://www.brnow.org/news/How-Southern-Baptists-became-pro-life/">A 1970 poll</a> by the Baptist Sunday School board found that a majority of Southern Baptist pastors supported abortion in a number of instances, including when the woman’s mental or physical health was at risk or in the case of rape or fetal deformity. </p>
<p>The SBC passed its <a href="https://www.sbc.net/resource-library/resolutions/resolution-on-abortion-2/">first resolution on abortion</a> two years before the Roe decision. While the Convention never supported the right of a woman to have an abortion at her request for any reason, the resolution did acknowledge the need for legislation that would allow for some exceptions. </p>
<p>In fact, many Southern Baptists saw the Roe decision as drawing <a href="https://religiondispatches.org/the-evangelical-abortion-myth-an-excerpt-from-bad-faith/">a needed line between church and state</a> on matters of morality and state regulation. A Baptist Press article just days after the decision called it an advancement of religious liberty, human equality and justice.</p>
<p>The Convention <a href="https://www.sbc.net/resource-library/resolutions/resolution-on-abortion-and-sanctity-of-human-life/">affirmed this resolution</a> in 1974 after Roe was decided. A 1976 resolution condemned abortion as “a means of birth control” but still insisted the decision ultimately remained between a woman and her doctor.</p>
<p><a href="https://www.sbc.net/resource-library/resolutions/resolution-on-abortion-4/">A 1977 resolution</a> clarified the Convention’s position, reaffirming its “strong opposition to abortion on demand.” However, it also reaffirmed the Convention’s views about the limited role of government and the right of pregnant women to medical services and counseling. This resolution was <a href="https://www.sbc.net/resource-library/resolutions/resolution-on-abortion/">affirmed again</a> in 1979.</p>
<h2>Fetus as a person</h2>
<p>Later that year, however, as an ultra-conservative faction within the denomination acquired power from more moderate leaders, things began to change.</p>
<p>Starting in 1980, Convention resolutions took a hard turn against abortion access. A “<a href="https://www.sbc.net/resource-library/resolutions/resolution-on-abortion-6/">Resolution on Abortion</a>” declared “that abortion ends the life of a developing human being” and called for legal measures “prohibiting abortion except to save the life of the mother.” </p>
<p>Another interesting shift happened in that resolution. Instead of referring to “fetal life,” as did earlier resolutions, the 1980 resolution called fetuses “unborn” or “pre-born” human life or “persons.” This shift in language made a significant change to the status of the fetus. It was no longer a developing organism dependent on a woman’s body, but rather it was a full human being with the same status and human rights as the women. A <a href="https://www.sbc.net/resource-library/resolutions/resolution-on-abortion-7/">1984 resolution</a> named a fetus “a living individual human being.”</p>
<p>Since then, the Convention has passed 16 more resolutions against abortion, including opposition to abortion pills, “partial-birth abortion” – an anti-choice political phrase rather than a medical term for a later term abortion that involves extraction of the fetus through the birth canal – the inclusion of abortion in federally funded health care and the use of aborted fetal tissue in research.</p>
<h2>Controlling women’s bodies</h2>
<p>The resolutions by the SBC focus on the fetus, but they also illustrate the Convention’s beliefs about gender, particularly how women and their bodies should be subordinate to men.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/469034/original/file-20220615-18-55n831.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A brick building that says Southern Baptist Convention." src="https://images.theconversation.com/files/469034/original/file-20220615-18-55n831.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/469034/original/file-20220615-18-55n831.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/469034/original/file-20220615-18-55n831.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/469034/original/file-20220615-18-55n831.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/469034/original/file-20220615-18-55n831.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/469034/original/file-20220615-18-55n831.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/469034/original/file-20220615-18-55n831.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The headquarters of the Southern Baptist Convention in Nashville, Tennesse.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SouthernBaptistNameChange/3bb00b2e6d994a71940c29d7d3b9d95f/photo?Query=southern%20baptist%20convention&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=425&currentItemNo=9">AP Photo/Mark Humphrey</a></span>
</figcaption>
</figure>
<p>Starting in 1980, resolutions dropped exceptions for rape, incest or mental trauma for abortion. The only acceptable instance for abortion for Southern Baptists became “<a href="https://www.sbc.net/resource-library/resolutions/resolution-on-encouraging-laws-regulating-abortion/">the imminent death of the mother</a>.” A <a href="http://christianbiowiki.org/wiki/index.php/Southern_Baptist_Convention">2005 position statement</a> made this clear: “At the moment of conception, a new being enters the universe, a human being, created in God’s image. This human being deserves our protection, whatever the circumstances of conception.”</p>
<p>A <a href="https://www.sbc.net/resource-library/resolutions/resolution-on-sex-education-and-adolescent-pregnancy/">1986 resolution</a> linked abortion with sinful sexuality. Calling for parents to educate their children about a “Christian understanding” of sexuality as a way to avoid unplanned pregnancies, the resolution also opposed abortion as “unscriptural” and harmful to the mother. A <a href="https://www.sbc.net/resource-library/resolutions/resolution-on-sex-education/">1987 resolution</a> called for teaching abstinence in schools as the “best and only sure way crisis pregnancies” can be prevented.</p>
<p>In 2003, <a href="https://www.sbc.net/resource-library/resolutions/on-thirty-years-of-roe-v-wade/">a resolution on abortion</a> co-opted the language of the women’s movement to call the Roe v. Wade decision “an act of injustice against innocent unborn children as well as against vulnerable women in crisis pregnancy situations.” The resolution went on to blame the “sexual revolution” and a “lucrative abortion industry” for victimizing women. Instead, it promoted anti-choice legislation as a means “to protect women and children from abortion,” and it offered prayers, love and advocacy for “women and men who have been abused by abortion.” </p>
<p>Resolutions also called for women to be given information about fetal development, and the Convention’s Ethics and Religious Liberty Commission created “<a href="https://psalm139project.org/">The Psalm 139 Project</a>” to provide ultrasound machines to crisis pregnancy centers so they could show women images of their fetuses to discourage them from abortion.</p>
<p><a href="https://alliancestateadvocates.org/wp-content/uploads/sites/107/Alliance-CPC-Study-Designed-to-Deceive.pdf">Crisis pregnancy centers</a> are primarily evangelical organizations that offer counseling and assistance to convince pregnant people not to have abortions. They often provide <a href="https://msmagazine.com/2022/04/11/roe-v-wade-overturned-crisis-pregnancy-centers/">misleading and false information</a>, and often receive large sums of public money with little public oversight. </p>
<p>The 2003 resolution also called on the government to “take action to protect the lives of women and children.” </p>
<p>Fifty years ago, the Convention’s views of abortion were guided by concerns about government intrusion into a private matter between a woman and her health care provider. Today, the Convention has fully embraced governmental control of a woman’s decisions about reproduction.</p><img src="https://counter.theconversation.com/content/183712/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Susan M. Shaw does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A scholar writes about how the Southern Baptist Convention’s views on abortion changed during the 1980s, when a more conservative wing seized control of the denomination.Susan M. Shaw, Professor of Women, Gender, and Sexuality Studies, Oregon State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1830872022-05-19T19:15:52Z2022-05-19T19:15:52ZAbortion and inherited disease: Genetic disorders complicate the view that abortion is a choice<figure><img src="https://images.theconversation.com/files/464309/original/file-20220519-20-kfauht.jpg?ixlib=rb-1.1.0&rect=143%2C19%2C3884%2C2844&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Incidence of birth defects is about one in 25 pregnancies.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/abortion-and-inherited-disease--genetic-disorders-complicate-the-view-that-abortion-is-a-choice" width="100%" height="400"></iframe>
<p>With the rising spectre of the <a href="https://www.theglobeandmail.com/canada/article-roe-v-wade-abortion-supreme-court-leak/">loss of women’s reproductive autonomy in the United States</a>, it’s timely to consider why abortion is an important and necessary part of pregnancy and fetal care. More consideration needs to be given to women and their partners who have a need for abortion due to serious fetal problems that will lead to early death or profound disability in their children.</p>
<p>Few enter into pregnancy with the idea that something could go wrong with fetal development, but approximately <a href="https://doi.org/10.24095/hpcdp.35.1.04">one in 25 infants are born with a birth defect</a>. And as a medical geneticist, I would like to focus on the much higher risk (often one in four) of recurrence of an inherited disease.</p>
<p>Statistically, each of us is more likely than not to be carriers for <a href="https://doi.org/10.1534/genetics.114.173351">a disorder that would be lethal before adulthood</a>. As carriers, we are not affected by disease, but are at risk of transmitting the disease to children if a partner is also a carrier. At present, any of us could be at risk, but we just don’t know.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/464311/original/file-20220519-18-iu1zrz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Diagram illustrating 25 per cent odds of inheriting a recessive genetic disease" src="https://images.theconversation.com/files/464311/original/file-20220519-18-iu1zrz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/464311/original/file-20220519-18-iu1zrz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=335&fit=crop&dpr=1 600w, https://images.theconversation.com/files/464311/original/file-20220519-18-iu1zrz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=335&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/464311/original/file-20220519-18-iu1zrz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=335&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/464311/original/file-20220519-18-iu1zrz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=420&fit=crop&dpr=1 754w, https://images.theconversation.com/files/464311/original/file-20220519-18-iu1zrz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=420&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/464311/original/file-20220519-18-iu1zrz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=420&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Two carriers of the same recessive genetic disease have a 25 per cent chance of conceiving a child who will inherit two recessive genes and have the disease, even though neither parent is affected.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<p>To put it into human terms, consider as an example my least favourite genetic disorder, <a href="https://doi.org/10.1002/ana.26260">SURF1 deficiency</a>, which occurs in about one in 40,000 births. Affected fetuses develop normally, have an unremarkable birth and early infancy, learn to walk and speak and then begin quite literally to stumble. They typically come to medical attention at around 18 months of age, are diagnosed at age two, and half of them die by the age of five years. </p>
<p>It’s a horror for sure, but now consider that these children retain normal cognition as their body fails. Looking into the eyes of a four-year-old who understands that they are dying is hard for me when I see them in clinic every few months, but their mothers must do this every day.</p>
<h2>Abortion is a critical option</h2>
<p>For families that have experienced a serious inherited disorder, subsequent pregnancies are traumatic. Abortion is a critical option, a security feature that allows them to consider having children again. Entering into a pregnancy with the intent to terminate one-quarter of the time may be hard for most people to understand, but for affected families it is a safe option when the alternatives are devastating. </p>
<figure class="align-center ">
<img alt="People holding signs reading 'There's nothing pro-life about this' and 'Abortion is healthcare'" src="https://images.theconversation.com/files/464227/original/file-20220519-6976-hxtdx8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/464227/original/file-20220519-6976-hxtdx8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=411&fit=crop&dpr=1 600w, https://images.theconversation.com/files/464227/original/file-20220519-6976-hxtdx8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=411&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/464227/original/file-20220519-6976-hxtdx8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=411&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/464227/original/file-20220519-6976-hxtdx8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=517&fit=crop&dpr=1 754w, https://images.theconversation.com/files/464227/original/file-20220519-6976-hxtdx8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=517&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/464227/original/file-20220519-6976-hxtdx8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=517&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Demonstrators protest outside of the U.S. Supreme Court in Washington, D.C., on May 6, 2022, after the leak of a draft opinion suggesting the U.S. Supreme Court could be poised to overturn Roe vs. Wade, the case that legalized abortion nationwide.</span>
<span class="attribution"><span class="source">(AP Photo/Mariam Zuhaib)</span></span>
</figcaption>
</figure>
<p>It is true that there are other options. Families can consider the use of donor sperm or egg. They can attempt the <a href="http://doi.org/10.1016/j.jogc.2018.08.001">pre-implantation diagnosis of embryos</a> created by <em>in vitro</em> fertilization. They can adopt. But all of these options may create financial, social or moral burdens that some women find impossible. </p>
<p>The important principle is that women and their families have all options available. We, as a society at large, are not relevant and should have no interest or opinion in the decisions they make.</p>
<h2>Gestational age and diagnostic timelines</h2>
<p>Abortion should remain legal, and it should not be limited by gestational age. I won’t hide my personal belief that abortion should be available without exception up until the time of delivery. This view has largely been formed by watching children die of untreatable disease. </p>
<p>The discovery of serious problems in a pregnancy can’t be subjected to a tidy timeline. Many diagnostic procedures that identify serious problems occur later than we would like them to, but this is what biology allows us. </p>
<p>Efforts to limit access to abortion late in pregnancy are particular in their cruelty to women carrying fetuses with congenital defects. These restrictions are often used as a <a href="https://www.jstor.org/stable/41054184">gateway to eliminate women’s reproductive freedom</a>, and will be in the United States.</p>
<p>It could be argued that the number of people affected by this problem is small. However, their exceptional voices risk being drowned out by a noisy debate about abortion. I am bothered by abortion debates being framed wholly in terms of the word “choice.” These women never asked to be put into this situation, and their rights, options and dreams must also be considered.</p><img src="https://counter.theconversation.com/content/183087/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Neal Sondheimer is a member of the board of directors of the MitoCanada Foundation, a non-profit supporting patients and families with mitochondrial disease and research into therapy. He serves on advisory boards for Jaguar Gene Therapy and Moderna. </span></em></p>For women with a family history of serious genetic disorders, abortion is a critical option: a security feature that allows them to consider having children.Neal Sondheimer, Associate Professor of Paediatrics and Molecular Genetics, University of TorontoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1830882022-05-17T18:55:58Z2022-05-17T18:55:58ZDenying abortion access has a negative impact on children and families<figure><img src="https://images.theconversation.com/files/463563/original/file-20220517-6205-q66vy6.jpg?ixlib=rb-1.1.0&rect=57%2C146%2C5183%2C3069&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Abortion-rights demonstrators hold up letters spelling out 'My Choice,' Saturday, May 14, 2022, outside the United States Supreme Court in Washington, D.C.
</span> <span class="attribution"><span class="source"> (AP Photo/Jacquelyn Martin)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/denying-abortion-access-has-a-negative-impact-on-children-and-families" width="100%" height="400"></iframe>
<p>The <a href="https://theconversation.com/whats-at-stake-as-supreme-court-appears-intent-on-overturning-roe-v-wade-3-essential-reads-182376"><em>Roe vs. Wade</em> Supreme Court proceedings</a> in the United States have put the spotlight on the issue of abortion rights. Limiting access to safe abortions has many consequences, including increases in <a href="https://www.scientificamerican.com/article/being-denied-an-abortion-has-lasting-impacts-on-health-and-finances/">poverty, unemployment</a> and <a href="https://theconversation.com/study-shows-an-abortion-ban-may-lead-to-a-21-increase-in-pregnancy-related-deaths-167610">pregnancy-related deaths</a>. Another key area of impact from restricting abortion access is on family well-being and child development.</p>
<p>As developmental and clinical psychologists, we research how to best support perinatal and child wellness. We are focused on preventing the transmission of risk factors for poor economic, social, physical and mental well-being for parents and children. We are especially concerned about how restricting abortion services will negatively impact children and families.</p>
<h2>Lasting impact on children</h2>
<p>In the 1960s, the <a href="https://doi.org/10.1016/S0968-8080(06)27219-7">Prague Study</a> started following the children of 220 parents who were denied an abortion. They were compared to another 220 children whose parents did not seek an abortion. Children whose parents were denied abortion had poorer academic achievement and were less likely to continue to higher education after high school.</p>
<p>In adulthood, the Prague Study found people whose parents were denied abortion reported less job satisfaction, more conflicts at work, fewer friendships and more disappointments in romantic relationships. By age 35, they were more likely to have been <a href="https://doi.org/10.1097/00005053-200210000-00001">psychiatric patients</a> than either their own siblings or a same-age cohort whose parents had not sought an abortion.</p>
<figure class="align-center ">
<img alt="A woman looking at a pregnancy test with her hand over her mouth" src="https://images.theconversation.com/files/463756/original/file-20220517-22-1pzaut.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/463756/original/file-20220517-22-1pzaut.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/463756/original/file-20220517-22-1pzaut.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/463756/original/file-20220517-22-1pzaut.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/463756/original/file-20220517-22-1pzaut.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/463756/original/file-20220517-22-1pzaut.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/463756/original/file-20220517-22-1pzaut.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Denying abortion access impacts parents, as well as the life outcomes of children who are born both before and after parents could not obtain an abortion.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<p>Research into unintended pregnancies, where parents had a negative attitude towards the pregnancy or did not intend to have a child, support the results of the Prague Study. Unintended offspring have poorer <a href="https://doi.org/10.1007/s00148-014-0530-z">academic achievement and income</a> and are more likely to be involved with the <a href="https://doi.org/10.1007/s00148-014-0530-z">criminal justice system</a> and develop <a href="http://doi.org/10.1017/s0033291708004479">depressive and psychotic disorders</a>. </p>
<p>Research at the population level suggests that restricting legal access to abortion negatively impacts the health and development of children. A comprehensive economic analysis indicated that the introduction of anti-abortion laws significantly <a href="http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.512.1701&rep=rep1&type=pdf">increased rates of child maltreatment</a>. Similarly, in the United States, more restrictive abortion policies at the state level are associated with <a href="https://doi.org/10.1080/07399332.2013.841699">poorer infant and child well-being</a> across health, poverty and academic outcomes.</p>
<p>Adoptees, <a href="https://blog.petrieflom.law.harvard.edu/2022/05/13/organizing-and-activism-of-adopted-and-displaced-people/">many of whom are pro-choice</a>, are also important voices to listen to when considering the impacts of adoption on children and families. Many children who are adopted face long-term barriers to well-being including <a href="https://doi.org/10.2307/1602410">emotional, behavioural and academic challenges</a>. </p>
<h2>Impact on existing children</h2>
<p><a href="https://doi.org/10.1186/1472-6874-13-29">One-third</a> of people seeking abortions report that one of their reasons for seeking an abortion is that a new child would negatively affect their ability to care for their current children. The <a href="https://www.ansirh.org/research/ongoing/turnaway-study">Turnaway Study</a> examined how being denied an abortion affects existing children in the family.</p>
<p>The Turnaway Study is the most exhaustive study on the impact of abortion to date. The study <a href="https://doi.org/10.1016/j.whi.2013.10.004">recruited</a> participants in 21 U.S. states between 2008 and 2010, following them for five years. Researchers compared 231 participants who were denied an abortion to 725 who received an abortion.</p>
<p>The study found that when a parent was denied an abortion, <a href="https://doi.org/10.1016/j.jpeds.2018.09.026">existing children under five years old</a> were less likely to have achieved developmental milestones. These milestones included skills of daily living appropriate for the child’s age, such as getting dressed, going to the bathroom, brushing teeth and feeding themselves. There were no delays in language, social, emotional and motor skills. Existing children of parents who were denied an abortion were also more likely to experience poverty-related stress.</p>
<h2>Poverty-related stress affects children</h2>
<figure class="align-center ">
<img alt="A man sitting at a table looking at mail, with a child beside him, and a woman behind him holding another child." src="https://images.theconversation.com/files/463696/original/file-20220517-23-5umack.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/463696/original/file-20220517-23-5umack.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=429&fit=crop&dpr=1 600w, https://images.theconversation.com/files/463696/original/file-20220517-23-5umack.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=429&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/463696/original/file-20220517-23-5umack.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=429&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/463696/original/file-20220517-23-5umack.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=539&fit=crop&dpr=1 754w, https://images.theconversation.com/files/463696/original/file-20220517-23-5umack.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=539&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/463696/original/file-20220517-23-5umack.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=539&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Parents denied abortions are more likely to be single parents, live in poverty and receive public assistance.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<p>Being denied an abortion increases poverty-related stress for parents. Limited abortion access is linked with lower <a href="https://doi.org/10.1363/3900607">academic success</a> and <a href="https://doi.org/10.1371/journal.pone.0248638">employment</a>. Parents denied abortions are more likely to <a href="https://doi.org/10.2105/AJPH.2017.304247">be single parents, live in poverty and receive public assistance</a>. A working paper on economic consequences found that these effects persist <a href="https://doi.org/10.3386/w26662">for years after birth</a>. This can contribute to the transmission of negative health and achievement outcomes between generations.</p>
<p>Access to resources is a key determinant of child developmental outcomes. Children in families experiencing poverty-related stress are more likely to have <a href="https://sleepscience.org.br/details/2860/en-US/socioeconomic-status-and-sleep-disturbances-among-pediatric-population--a-continental-systematic-review-of-empirical-research">poor sleep</a> and to suffer from <a href="http://doi.org/10.1097/MOP.0000000000000876">physical illnesses</a>, including injuries, <a href="https://www.britannica.com/science/caries">dental caries</a> and risk factors for heart disease. Growing up in poverty <a href="https://doi.org/10.1016/j.socscimed.2013.04.026">more than doubles</a> a child’s risk of developing mental health problems. </p>
<p>Poverty-related stress is also linked with lower <a href="https://doi.org/10.3102/00346543075003417">academic success</a>, poorer <a href="https://doi.org/10.1371/journal.pone.0260788">working memory</a> and poorer <a href="https://doi.org/10.1080/09297049.2021.1879766">cognitive flexibility</a>, which is the brain’s ability to think about multiple things at the same time or adjust thinking based on changing needs or information. Children with <a href="https://doi.org/10.1016/j.tins.2015.07.003">lower cognitive flexibility</a> can have difficulty adapting their behaviour to new or changing events. </p>
<p>For the existing children in the family, their parents being denied an abortion may also lead to instability, where there are sudden changes in the child’s living conditions. This is concerning since instability has been linked to <a href="https://doi.org/10.1016/j.socscimed.2019.02.048">emotion and behaviour problems</a> in children.</p>
<h2>Abortion access protects child and family well-being</h2>
<p>The benefits of abortion access for parent, family and child well-being are clear. Denying abortion access impacts parents, as well as the life outcomes of children who are born both before and after to parents who could not obtain an abortion. </p>
<p>As abortion access is limited, the consequences at the individual level ripple through society as, on average, people denied abortions and their children are more likely to experience negative economic, social and health effects. The impacts of limited abortion access are worse for <a href="https://doi.org/10.1186/s12913-021-07165-x">groups and communities that experience discrimination and exclusion</a>, such as poor and racialized people. This can increase financial gaps and achievement gaps between groups in society.</p>
<p>Pregnant people are aware of their unique circumstances and <a href="https://doi.org/10.1007/s00737-009-0084-3">seek abortions after considering</a> their own needs, the needs of their existing children and the potential child, and their partners. Access to safe abortion services is an essential public health tool to promote the well-being of parents, childless people, children, families and society.</p><img src="https://counter.theconversation.com/content/183088/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charlie Rioux receives funding from Research Manitoba and the Children’s Hospital Foundation of Manitoba. She also previously received funding from the Canadian Institute of Health Research and the Fonds de Recherche du Québec - Santé.</span></em></p><p class="fine-print"><em><span>Leslie E. Roos receives funding from Canadian Tri-agencies Granting Councils including CIHR, SSHRC, and NSERC as well as support from Children's Research Hospital Institute of Manitoba and Research Manitoba.</span></em></p><p class="fine-print"><em><span>Lianne Tomfohr-Madsen receives funding from Canadian Tri-agencies Granting Councils including CIHR, and SSHRC, as well as support from the Canadian Child Health Clinician Scientist Program. </span></em></p>Restricting abortion access has negative effects on parents, as well as children and families, including increased poverty, unemployment, pregnancy-related deaths and higher health risks in children.Charlie Rioux, Postdoctoral Fellow, Department of Psychology, University of ManitobaLeslie E. Roos, Assistant Professor, Department of Psychology, University of ManitobaLianne Tomfohr-Madsen, Associate Professor, Department of Psychology, University of CalgaryLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1825002022-05-10T12:05:17Z2022-05-10T12:05:17ZReligious beliefs give strength to the anti-abortion movement – but not all religions agree<figure><img src="https://images.theconversation.com/files/462051/original/file-20220509-21-bjdoua.jpg?ixlib=rb-1.1.0&rect=53%2C8%2C5883%2C3970&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Anti-abortion protesters holding a cross demonstrate in front of the Supreme Court Building in December 2021, in Washington.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtAbortion/75587c04f8224398ad91b0a8d9ab45f1/photo?Query=abortion&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=10354&currentItemNo=1">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p>The <a href="https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473">leaked draft of Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization</a>, which has sent <a href="https://slate.com/news-and-politics/2022/05/samuel-alitos-leaked-draft-opinion-is-shocking-in-tone-and-tenor.html">shock waves</a> across the United States, indicates that a majority of Supreme Court justices will likely overturn the constitutional right to an abortion granted in <a href="https://www.oyez.org/cases/1971/70-18">Roe v. Wade</a>. Employing unusually harsh language, Alito declared that “Roe and <a href="https://www.oyez.org/cases/1991/91-744">Planned Parenthood v.Casey</a> must be overruled” because of the decisions’ “abuse of judicial authority.” </p>
<p>“Roe was egregiously wrong from the start,” Alito wrote, and its “reasoning was exceptionally weak.” </p>
<p>He also asserted that neither abortion nor privacy is mentioned in the text of the Constitution, nor should they be considered to be “deeply rooted in the Nation’s history or traditions” so as to be worthy of protection.</p>
<p>As a <a href="https://willamette.edu/law/faculty/profiles/green/index.html">professor of constitutional law</a> who has taught about reproductive rights for more than 20 years, I argue that Alito’s legal reasoning leaves out several established constitutional principles also not mentioned in the text – such as separation of powers and executive privilege – as well as rights that conservatives hold near and dear like the right to marry and parental rights. </p>
<p>Alito’s claim that a right to an abortion “was entirely unknown in American law” until Roe is unfounded. Historically, <a href="https://cmc.marmot.org/Record/.b19681331">abortion was not completely illegal</a>, even in Puritan New England. The first abortion restrictions <a href="https://www.findlaw.com/state/connecticut-law/connecticut-abortion-laws.html">were enacted in the U.S. in the 1820s</a>. </p>
<p>Even then, they generally outlawed abortions only after “quickening,” the early equivalence of fetal viability – the ability to survive outside the mother’s womb. Alito’s legal rationales aside, the legal debate over abortion is as much a religious dispute as it is a constitutional one. </p>
<h2>Religious opposition</h2>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/462055/original/file-20220509-22-9j16vu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Anti-abortion protestors carrying banners expressing love for life." src="https://images.theconversation.com/files/462055/original/file-20220509-22-9j16vu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/462055/original/file-20220509-22-9j16vu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/462055/original/file-20220509-22-9j16vu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/462055/original/file-20220509-22-9j16vu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/462055/original/file-20220509-22-9j16vu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/462055/original/file-20220509-22-9j16vu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/462055/original/file-20220509-22-9j16vu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Anti-aboriton activists kneel and pray in front of the Supreme Court Building during the annual March for Life in 2017.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/MarchforLife/28910ebec6fa4702b2b8cc76c9adcd3f/photo?Query=pray%20for%20life%20anti%20abortion&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=20&currentItemNo=2">AP Photo/Andrew Harnik</a></span>
</figcaption>
</figure>
<p>Most anti-abortion rallies have signs and banners with religious admonitions such as “<a href="https://www.nationaldayofprayer.org/pray_for_life">pray for life</a>” and “<a href="https://www.ewtn.com/catholicism/devotions/prayer-to-end-abortions-367">pray to end abortion</a>.” </p>
<p>Today, the Catholic Church’s strong opposition to abortion and contraception is well known. However, in an interesting recent book, “<a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674248090">Abortion in Early Modern Italy</a>,” historian <a href="https://history.ubc.ca/profile/john-christopoulos/">John Christopoulos</a> argues that prior to 1588, the Catholic Church’s position on abortion was more ambiguous. Before then, the church did not necessarily oppose abortion before quickening, but in that year shifted its position through a papal declaration that pronounced that the human soul is created at the moment of conception, known as “<a href="https://embryo.asu.edu/pages/effraenatam-1588-pope-sixtus-v">ensoulment</a>,” and that all abortions were murder. </p>
<p>In 1968, the National Conference of Catholic Bishops founded the National Right to Life organization to coordinate activities of state groups that opposed abortion. In 1973, following Roe, the organization incorporated as the National Right to Life Committee, <a href="https://www.nrlc.org/about/history/">severing formal ties with the Catholic Church</a> in order to attract conservative Protestants. </p>
<p>In addition to Catholic groups such as <a href="https://www.priestsforlife.org/">Priests for Life</a>, opposition to abortion is driven by other conservative groups with Protestant members, including the <a href="https://www.ffcoalition.com/">Faith and Freedom Coalition</a> and the <a href="https://www.frc.org/">Family Research Council</a>. </p>
<p>More militant anti-abortion groups such as Operation Rescue and Operation Save America also state their opposition on religious grounds. <a href="https://www.rightwingwatch.org/report/return-to-wichita-25-years-after-the-summer-of-mercy-the-rescue-movement-plots-its-next-steps/">According to one OSA official</a>, “Satan wants to kill innocent babies, demean marriage and distort the image of God.” </p>
<h2>Religious division</h2>
<p>In actuality, America’s religious community is divided over the issue of abortion. <a href="https://www.pewresearch.org/fact-tank/2021/06/17/key-facts-about-the-abortion-debate-in-america/">According to the Pew Research Center</a>, approximately three-quarters of white evangelical Protestants – 77% – say abortion should be illegal in all or most cases, while 63% of white Protestants who are not evangelical say abortion should be legal in all or most cases. Interestingly, attitudes of Catholic laity are more narrowly split – 55% favor legal abortion in all or most cases, while 43% say it should be illegal in all or most cases. </p>
<p>As philosopher <a href="https://dbpedia.org/page/Peter_Wenz">Peter Wenz</a> argued in his book “<a href="https://tupress.temple.edu/book/3000">Abortion Rights as Religious Freedom</a>,” one’s opinion about whether a pre-viable fetus is a person is a religious decision. Abortion restrictions interfere with this right to religious freedom. </p>
<p>Several liberal denominations agree. A 1981 resolution of the <a href="https://www.uccfiles.com/pdf/GS-Resolutions-Freedom-of-Choice.pdf">United Church of Christ declares</a> that “every woman must have the freedom of choice to follow her personal and religious convictions concerning the completion or termination of a pregnancy.” And according to the National Council of Jewish Women, <a href="https://www.ncjw.org/wp-content/uploads/2019/05/Judaism-and-Abortion-FINAL.pdf">Jewish law does not recognize a fetus to be a person</a> but instead teaches that abortion is permitted and even required when a woman’s health is endangered. </p>
<p>Yet for conservative Christians who believe that life or ensoulment begins at conception, there can be no compromise on the issue of abortion. And the issue of abortion has long been a priority among conservatives in a way not shared by liberals. This helps explain much of the staying power in the anti-abortion movement. Fifty years of legal precedent support the right to abortion. But anti-abortion activists’ <a href="https://www.vox.com/23055389/roe-v-wade-timeline-abortion-overturn-political-polarization">moral certainty about the issue</a> is so strong that, in their eyes, even this half-century of precedent seems destined to crumble. </p>
<p>After all, they reason, <a href="https://www.jsonline.com/story/opinion/2022/05/03/roe-v-wade-incorrectly-decided-there-no-right-abortion/9617605002/">legal rules and principles</a> are rarely absolute. For them, the religious certainty about the wrongness of abortion provides an answer that the law lacks.</p><img src="https://counter.theconversation.com/content/182500/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steven K. Green does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A scholar of constitutional law and American religious history explains how the abortion issue has been historically rooted in religious beliefs, giving a moral certainty that law cannot provide.Steven K. Green, Professor of Law, Director of the Center for Religion, Law & Democracy, Willamette UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1823122022-05-03T13:10:22Z2022-05-03T13:10:22ZWhy the Supreme Court rejected Boston’s case against raising the Christian flag<figure><img src="https://images.theconversation.com/files/460866/original/file-20220502-18-rqunia.jpg?ixlib=rb-1.1.0&rect=43%2C5%2C3559%2C2392&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Pedestrians walk near three flag poles flying the American flag, the Commonwealth of Massachusetts flag, and the City of Boston flag, from left, outside Boston City Hall, May 2, 2022.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Supreme%20Court%20Christian%20Flag%20Boston/2597bcf119554d378bdad17b4e6398a8?Query=boston&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=254395&currentItemNo=0">AP Photo/Charles Krupa</a></span></figcaption></figure><p>There are three flagpoles outside Boston City Hall. One flies the United States flag. Another flies the Massachusetts state flag. And on Monday, the Supreme Court ruled on what can fly from the third.</p>
<p>In <a href="https://www.oyez.org/cases/2021/20-1800">Shurtleff v. Boston</a>, the ruling which came down on May 2, 2022, the court unanimously held that the City of Boston violated the First Amendment’s free speech rights of a group that promotes the appreciation of “<a href="https://campconstitution.net/mission-statement/">God, home, and country</a>” by denying its request to raise a Christian flag at the site, given that the city had previously allowed secular groups to temporarily use the flagpole. </p>
<p>The key question, which determined the outcome in the case, was whether raising a flag on City Hall’s third flagpole was an act of government speech or private expression: categories covered by two different free speech doctrines, which I study in <a href="https://clasprofiles.wayne.edu/profile/hf1190">my work on the First Amendment</a>.</p>
<p>If it had been deemed an act of government speech, Boston would have had the right to selectively choose which messages it could endorse and could refuse to raise the Christian flag. But if, as the justices have now ruled, it is an act of private expression for which Boston provides a forum, then Boston cannot exclude it.</p>
<p>As such, <a href="https://supreme.justia.com/cases/federal/us/596/20-1800/#tab-opinion-4576621">the court ruled</a> that denying a request to temporarily raise the Christian flag violated the First Amendment – a clarification that may impact how other courts nationwide interpret the Constitution’s guarantee of free speech.</p>
<h2>Case background</h2>
<p>Boston has permitted groups to request that a flag temporarily fly alongside the American and Massachusetts flags at City Hall to mark special occasions, replacing the city flag that usually occupies the third post. Past examples include flag requests from the Chinese Progressive Association and the National Juneteenth Observance Foundation.</p>
<p>In 2017, Camp Constitution, a New Hampshire-based organization, requested to fly the <a href="https://www.christianitytoday.com/history/2008/august/do-you-know-history-of-christian-flag.html">Christian flag</a>, which has a cross in the upper left corner and was designed by a Sunday school teacher and a missionary executive in the late 1800s. Today, some Protestant denominations display the flag inside their churches.</p>
<p>Camp Constitution asked to fly the flag as part of a planned event “<a href="https://www.supremecourt.gov/DocketPDF/20/20-1800/199877/20211115105458448_20-1800%20Brief%20for%20Petitioners.pdf">to celebrate the civic contributions of Boston’s Christian community</a>.” The organization <a href="https://campconstitution.net/mission-statement/">says its mission</a> is “to enhance understanding of our Judeo-Christian moral heritage, our American heritage of courage and ingenuity, including the genius of our United States Constitution, and the application of free enterprise.”</p>
<p>Boston denied the request. The city cited concerns that raising the Christian flag at Boston City Hall would violate <a href="https://constitution.congress.gov/constitution/amendment-1/">the First Amendment’s</a> Establishment Clause, which <a href="https://www.law.cornell.edu/wex/establishment_clause">bars the government</a> from promoting particular religions over others. After making a second request, which Boston also denied, Camp Constitution sued.</p>
<p>A federal district court and the First Circuit Court of Appeals <a href="http://media.ca1.uscourts.gov/pdf.opinions/20-1158P-01A.pdf">sided with Boston</a> on the grounds that flying a flag on the third flagpole was government speech, not private speech – and therefore the city was entitled to refuse to fly the Christian flag on its flagpole.</p>
<p>Camp Constitution appealed to the Supreme Court, which granted review and <a href="https://www.supremecourt.gov/opinions/21pdf/20-1800_7lho.pdf">rejected the lower courts’ conclusion</a>. Instead, the justices held that it would be Camp Constitution’s expression, not Boston’s, if the Christian flag were to be raised on the third flagpole.</p>
<p>As Justice <a href="https://supreme.justia.com/cases/federal/us/596/20-1800/#tab-opinion-4576619">Samuel Alito noted in his concurrence</a>, this meant that the court needed to apply the <a href="https://www.mtsu.edu/first-amendment/article/824/public-forum-doctrine">public forum doctrine</a>, which in this case would not allow Boston to turn down Camp Constitution’s request to speak. </p>
<p>If the court had determined that the city of Boston was speaking, then the court’s <a href="https://www.mtsu.edu/first-amendment/article/962/government-speech-doctrine">government speech doctrine</a> would have applied.</p>
<h2>Public forum doctrine</h2>
<p>Federal, state and local governments oversee a wide variety of public spaces: parks, universities and courthouses, just to name a few. The Supreme Court has organized government spaces into several categories, each of which permits different types of restrictions on free speech – rules referred to as the <a href="https://www.mtsu.edu/first-amendment/article/824/public-forum-doctrine">public forum doctrine</a>. </p>
<p>Spaces like public parks and sidewalks are considered public forums, the category that permits the fewest restrictions on speech. In a public forum, a government can never restrict speech <a href="https://www.mtsu.edu/first-amendment/article/1028/viewpoint-discrimination">based on viewpoints</a> – specific positions on a topic – and is severely limited as to when it can restrict speech <a href="https://www.mtsu.edu/first-amendment/article/935/content-based">based on content</a> – a given topic.</p>
<p>Normally, a flagpole outside a city hall would not be considered a public forum. However, the Supreme Court also recognizes a separate category, “designated public forums,” which are spaces the government converts into public forums. In a designated public forum, free speech regulation is limited in the same way it would be in a public forum.</p>
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<img alt="A white flag with a red cross in the corner flies below an American flag, next to a church steeple." src="https://images.theconversation.com/files/439546/original/file-20220105-27-l9ujld.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/439546/original/file-20220105-27-l9ujld.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/439546/original/file-20220105-27-l9ujld.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/439546/original/file-20220105-27-l9ujld.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/439546/original/file-20220105-27-l9ujld.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/439546/original/file-20220105-27-l9ujld.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/439546/original/file-20220105-27-l9ujld.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A Christian flag flies beneath the American flag next to a church steeple.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/battle-weary-royalty-free-image/157034896?adppopup=true">nameinfame/iStock via Getty Images Plus</a></span>
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<p>In Shurtleff v. Boston, both parties agreed that the area surrounding the flagpole is a public forum. But they disagreed over whether the flagpole itself had become a designated public forum, with <a href="https://www.supremecourt.gov/DocketPDF/20/20-1800/199877/20211115105458448_20-1800%20Brief%20for%20Petitioners.pdf">Camp Constitution arguing</a> that it had, and <a href="https://www.supremecourt.gov/DocketPDF/20/20-1800/205184/20211215140356941_20-1800%20Respondents%20Brief.pdf">Boston arguing</a> that it had not.</p>
<p>Justice Stephen Breyer, writing for the majority, noted that the “line between a forum for private expression and the government’s own speech is important, but not always clear.” </p>
<p>According to the court, on balance, more evidence suggested that Boston had turned the flagpole into a venue for private expression. The justices indicated that their conclusion applied to Boston’s specific policies. In other words, not all government flagpoles are public forums – and Boston could adopt new policies attempting to put restrictions on the type of flags public groups could fly on its flagpole.</p>
<p>[<em>3 media outlets, 1 religion newsletter.</em> <a href="https://theconversation.com/us/newsletters/this-week-in-religion-76/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=religion-3-in-1">Get stories from The Conversation, AP and RNS.</a>]</p>
<h2>Government speech doctrine</h2>
<p>Shurtleff v. Boston is now the newest precedent in the line of cases that constitutes the court’s <a href="https://www.mtsu.edu/first-amendment/article/962/government-speech-doctrine">government speech doctrine</a>.</p>
<p>Over 30 years ago, in <a href="https://www.law.cornell.edu/supct/html/89-1391.ZO.html">Rust v. Sullivan</a>, the Supreme Court recognized that the government itself is a speaker with First Amendment rights. Government speech is not subject to the public forum doctrine. Instead, the government has much greater discretion in deciding which messages it endorses.</p>
<p>In 2009, for example, the Supreme Court held in <a href="https://www.supremecourt.gov/opinions/08pdf/07-665.pdf">Pleasant Grove v. Summum</a> that the permanent monuments in a park owned and operated by the town were government speech. The Supreme Court’s unanimous decision allowed the town to deny <a href="https://abcnews.go.com/US/story?id=6292080&page=1">a request from a small religious group</a>, Summum, to install a permanent monument expressing its beliefs, even though the park had previously accepted a monument of the Ten Commandments.</p>
<p>And in 2015, the Supreme Court held in <a href="https://www.supremecourt.gov/opinions/14pdf/14-144_758b.pdf">Walker v. Texas Division, Sons of Confederate Veterans</a> that license plates were government speech. This permitted Texas to deny a request for a specialty license plate featuring the Confederate flag, even though Texas offered a wide range of other specialty plates. </p>
<p>But in 2017, the court <a href="https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf">unanimously held</a> that the U.S. Patent and Trademark office was not engaged in government speech when accepting or rejecting applications for trademarks. Therefore, officials could not make trademark approvals contingent on whether trademark applicants used language the government would be comfortable expressing.</p>
<p>In previous cases, the Supreme Court has focused on several factors to determine whether an act of expression is government speech. These factors include how such acts of expression have been used historically, who the public would tend to reasonably assume is speaking and who maintains control. </p>
<p>In Shurtleff v. Boston, the court denied using a “mechanical” test to determine when something is government speech versus private expression. <a href="https://www.supremecourt.gov/opinions/21pdf/20-1800_7lho.pdf">Justice Breyer wrote</a> that the court’s inquiry had been “holistic,” implying that it did not strictly rule based on these same several factors, which the court referred to as “indicia.”</p>
<p>Nonetheless, the court’s analysis still relied on these considerations heavily. This may create confusion for lower courts about how exactly the government speech doctrine should be applied. Thus, while the court has resolved this particular case, it likely has not resolved longer-lasting disputes about the nature and scope of the government speech doctrine. </p>
<p><em>This is an updated version of <a href="https://theconversation.com/can-a-christian-flag-fly-at-city-hall-the-supreme-court-will-have-to-decide-174022">an article first published on Jan. 6, 2022</a>.</em></p><img src="https://counter.theconversation.com/content/182312/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Satta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court ruled May 2, 2022, in Shurtleff v. Boston, a free speech case.Mark Satta, Assistant Professor of Philosophy, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1805312022-04-04T12:30:41Z2022-04-04T12:30:41ZKetanji Brown Jackson set for historic Supreme Court confirmation vote: 3 essential reads<figure><img src="https://images.theconversation.com/files/455928/original/file-20220403-92295-guht6v.jpg?ixlib=rb-1.1.0&rect=22%2C11%2C7572%2C5044&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The next Supreme Court justice?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-nominee-ketanji-brown-jackson-smiles-during-a-news-photo/1239649334?adppopup=true">Drew Angerer/Getty Images</a></span></figcaption></figure><p>Members of the Senate Judiciary Committee are <a href="https://www.foxnews.com/politics/senate-judiciary-committee-ketanji-brown-jackson-supreme-court-vote-monday">scheduled to vote April 4, 2022,</a> on Ketanji Brown Jackson’s nomination for the Supreme Court. It kicks off a potentially historic week in which a full Senate vote could set course for the nation’s highest court seating it’s first Black female judge.</p>
<p>The elevation of Jackson to the Supreme Court would not change the ideological setup of the bench – which would continue to be split 6-3 in favor of conservative justices.</p>
<p>Nonetheless, it would be an important landmark in the history of the Court – of the <a href="https://www.supremecourt.gov/about/members_text.aspx">115 justices on the Supreme Court</a> since it was established in 1789, 108 have been white men.</p>
<p>Race featured in Jackson’s confirmation process; so too attempts to define her “<a href="https://www.usatoday.com/story/opinion/columnist/2022/03/24/ketanji-brown-jackson-defies-judicial-philosophy/7135573001/">judicial philosophy</a>.” The Conversation has turned to legal scholars to explain the meaning of Jackson’s potential ascension to the court.</p>
<h2>On the shoulders of pioneers</h2>
<p>Jackson, if she wins confirmation at the next stage, a vote by the full Senate, will have broken through the ultimate glass ceiling in terms of legal careers. She would have done so on the shoulders of pioneering Black female judges.</p>
<p><a href="https://people.clas.ufl.edu/polssdw/">University of Florida’s Sharon D. Wright Austin</a> notes, even now, “relatively few Black women are judges at the state or federal level” – which makes the achievement of those who have made it to this level all the more remarkable.</p>
<p>Of the judges <a href="https://theconversation.com/ketanji-brown-jacksons-path-to-supreme-court-nomination-was-paved-by-trailblazing-black-women-judges-179728">highlighted by Austin</a>, there is Judge Jane Bolin, who became the country’s first Black female judge in 1939, serving as a domestic relations court judge in New York for almost four decades. Later, in 1961, Constance Baker Motley became the first Black woman to argue a case before the Supreme Court. In all she argued 10 cases before the Court, winning nine of them. Meanwhile, Judge Julia Cooper Mack is noted as the first Black woman to sit on a federal appellate court, being appointed in 1975 and serving 14 years on the bench.</p>
<p>These women are to be celebrated and remembered. As Wright Austin writes: “Representation matters: It is easier for young girls of color to aspire to reach their highest goals when they see others who have done so before them, in the same way that women like Jane Bolin, Constance Baker Motley and Julia Cooper Mack encouraged Ketanji Brown Jackson to reach hers.</p>
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Read more:
<a href="https://theconversation.com/ketanji-brown-jacksons-path-to-supreme-court-nomination-was-paved-by-trailblazing-black-women-judges-179728">Ketanji Brown Jackson’s path to Supreme Court nomination was paved by trailblazing Black women judges</a>
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<h2>Echoes of the past</h2>
<p>The fact that a Black female Supreme Court justice is long overdue is testament to the slow progress the U.S. has made toward racial – and gender – equality.</p>
<p>Margaret Russell, a <a href="https://www.scu.edu/ic/programs/bannan-forum/faculty-collaboratives/racial--ethnic-justice/margaret-russell/">constitutional law professor from Santa Clara University</a>, saw signs of this lack of advancement during parts of Jackson’s Senate Judiciary Committee confirmation hearings.</p>
<p>Questions directed at the would-be Supreme Court justice were, according to Russell, <a href="https://theconversation.com/ketanji-brown-jacksons-supreme-court-hearing-is-a-flashback-to-how-race-and-crime-featured-during-thurgood-marshalls-1967-hearings-177306">tantamount to race-baiting</a>. They also sounded eerily similar to criticisms that then-Supreme Court nominee Thurgood Marshall, the first Black American nominee to the court, faced in his own confirmation hearings in 1967. </p>
<p>Both Jackson now, and Marshall then, stood accused by senators of being soft on crime and were asked about how they intended to bring race into their legal decisions. "Are you prejudiced against white people in the South?” Marshall was asked by a known white supremacist senator. Similarly, Jackson was asked during her confirmation hearings if she had a “hidden agenda” to incorporate critical race theory, which holds that racism is structural in nature rather than expressed solely through personal bias, into the legal system.</p>
<p>“I find it striking,” Russell writes, “that race has surfaced in such a major way in these hearings, more than five decades after Marshall’s nomination. In some respects, there has been progress on racial equity in the U.S., but aspects of these hearings demonstrate that too much remains the same.”</p>
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<a href="https://theconversation.com/ketanji-brown-jacksons-supreme-court-hearing-is-a-flashback-to-how-race-and-crime-featured-during-thurgood-marshalls-1967-hearings-177306">Ketanji Brown Jackson's Supreme Court hearing is a flashback to how race and crime featured during Thurgood Marshall's 1967 hearings</a>
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<h2>What Jackson would bring to the Supreme Court</h2>
<p>Jackson’s potentially historic achievement of becoming the first Black female Supreme Court justice may distract from the fact she is also <a href="https://theconversation.com/supreme-court-nominee-ketanji-brown-jackson-faces-confirmation-hearings-7-questions-answered-179715">eminently qualified to sit on the highest court</a> in her own rights.</p>
<p><a href="https://law.rutgers.edu/directory/view/ak1444">Alexis Karteron of Rutgers University-Newark</a> notes that the Harvard law-trained Jackson went on to clerk for Stephen Breyer, the retiring justice she is set to replace. She has served on the U.S. Sentencing Commission as well as acting as both a trial court and appellate judge.</p>
<p>[<em>Over 150,000 readers rely on The Conversation’s newsletters to understand the world.</em> <a href="https://memberservices.theconversation.com/newsletters/?source=inline-150ksignup">Sign up today</a>.]</p>
<p>Jackson is also the first former criminal defense attorney to be nominated to the Supreme Court since Marshall. This puts Jackson in a unique position on the bench. Karteron writes that having served as a public defender “will help [Jackson] understand the very real human toll of our criminal justice system. … The criminal justice system takes an enormous toll on both the people in the system and their loved ones. I believe having a Supreme Court justice who is familiar with that is incredibly valuable.”</p>
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Read more:
<a href="https://theconversation.com/supreme-court-nominee-ketanji-brown-jackson-faces-confirmation-hearings-7-questions-answered-179715">Supreme Court nominee Ketanji Brown Jackson faces confirmation hearings: 7 questions answered</a>
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Scholars discuss the meaning of Ketanji Brown Jackson’s potential elevation to the highest court in the land.Matt Williams, Senior International EditorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1779802022-04-01T12:47:27Z2022-04-01T12:47:27ZSupreme Court to decide whether a public school football coach can pray on the field<figure><img src="https://images.theconversation.com/files/454866/original/file-20220329-27-1bqkeus.jpg?ixlib=rb-1.1.0&rect=0%2C9%2C2121%2C1400&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">When is a prayer after a public-school game constitutional?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/professional-football-players-huddle-on-the-field-royalty-free-image/514773450?adppopup=true">TerryJ/iStock via Getty Images Plus</a></span></figcaption></figure><p>The Supreme Court has consistently banned school-sponsored prayer in public K-12 schools, whether at the <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep370/usrep370421/usrep370421.pdf">start of the school day</a>, during <a href="https://www.law.cornell.edu/supct/html/90-1014.ZO.html">graduation ceremonies</a> or before <a href="https://www.law.cornell.edu/supct/html/99-62.ZO.html">football games</a>. Under the <a href="https://www.law.cornell.edu/uscode/text/20/4071">Equal Access Act</a>, the <a href="https://www.law.cornell.edu/supremecourt/text/496/226%26gt%3B.">Supreme Court has affirmed</a> that students may organize prayer and Bible study clubs during non-instructional hours. Even so, school staff and outside adults may not actively participate.</p>
<p>Lower courts have mostly forbidden public school teachers from openly praying in the workplace, even if students are not involved. Yet the Supreme Court has not directly addressed such a case – until now.</p>
<p><a href="https://www.oyez.org/cases/2021/21-418">Kennedy v. Bremerton School District</a>, a case from Washington state, for which oral arguments were heard on <a href="https://www.supremecourt.gov/oral_arguments/argument_calendars/MonthlyArgumentCalApril2022.pdf">April 25, 2022</a>, could usher in more religious activities by teachers and other staff in public schools.</p>
<p>At issue is whether a school board violated the rights of Joseph Kennedy, a football coach <a href="https://www.seattletimes.com/seattle-news/education/appeals-court-weighs-former-bremerton-coachs-case-over-prayer/">it suspended</a>, and whose contract it did not renew, because he ignored its directive to stop kneeling in silent prayer on the field after games. Kennedy claims that the board violated his First Amendment rights to freedom of speech and freedom of religion, along with his rights under the <a href="https://www.dol.gov/agencies/oasam/civil-rights-center/statutes/civil-rights-act-of-1964#:%7E:text=In%201964%2C%20Congress%20passed%20Public,hiring%2C%20promoting%2C%20and%20firing.">Civil Rights Act</a>, which prohibits employment discrimination.</p>
<p>The Supreme Court faces <a href="https://www.scotusblog.com/case-files/cases/kennedy-v-bremerton-school-district-2/">two key questions</a>: whether prayers public school employees say in front of students are protected by their First Amendments rights; and, if they are, whether educational officials must still prohibit them in order to avoid promoting particular religions and violating the Establishment Clause. </p>
<p>From my perspective as a <a href="https://udayton.edu/directory/education/eda/russo_charles.php">specialist in education law</a>, the case is noteworthy because the court should resolve sticky questions surrounding whether public school employees can pray when supervising students, or if doing so crosses the line and becomes impermissible government speech.</p>
<p>Kennedy v. Bremerton also reflects the inherent tension between <a href="https://constitution.congress.gov/constitution/amendment-1/">the First Amendment’s</a> two clauses <a href="https://home.ubalt.edu/shapiro/rights_course/Chapter5text.htm#:%7E:text=The%20free%20exercise%20clause%20protects,in%20religion%20and%20religious%20activities.">on religious freedom</a>: The Free Exercise clause protects individuals’ right to practice their faiths as they wish, while the Establishment Clause forbids the government from “establishing” a religion. </p>
<p>In other words, a tension exists between public employees’ right to religious expression within the boundaries of the law and employers’ needs to avoid violating the Establishment Clause.</p>
<h2>Facts of the case</h2>
<p>In 2008, Kennedy, a self-described Christian, worked as head coach of the junior varsity football team and assistant coach of the varsity team at Bremerton High School. He initially knelt on the 50-yard line after games, regardless of the outcome, offering a brief, quiet prayer of thanks.</p>
<p>While Kennedy first prayed alone, eventually most of the players on his team, and then members of opposing squads, joined in. He later <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/18/20-35222.pdf">added inspirational speeches</a>, causing some parents and school employees to voice concerns that players would feel compelled to participate.</p>
<p>The school board directed Kennedy to stop praying on the field because officials feared that his actions could put it at risk of violating the First Amendment. The government is prohibited from making laws “<a href="https://www.law.cornell.edu/wex/establishment_clause">respecting an establishment of religion, or prohibiting the free exercise thereof</a>” – often understood as meaning public officials cannot promote particular faiths over others.</p>
<p>In September 2015, school board officials notified the coach that he could continue delivering his inspirational speeches after games, but they had to remain secular. Although students could pray, he could not. Even so, a month later <a href="https://www.cnn.com/2015/10/17/us/washington-football-coach-joe-kennedy-prays/index.html">Kennedy resumed his prayers</a>. He had publicized his plans to do so, and was joined by players, coaches and parents, while reporters watched.</p>
<p>Bremerton’s school board offered accommodations to allow the coach to pray more privately, which he rejected. At the end of October, officials <a href="https://www.cnn.com/2015/10/29/us/washington-football-coach-joe-kennedy-prays/index.html">placed him on paid leave</a> for violating their directive, and eventually chose not to renew his one-year contract. He <a href="https://www.deseret.com/2016/8/15/20593931/fired-for-praying-on-field-football-coach-sues">filed a suit</a> in August 2016.</p>
<figure class="align-center ">
<img alt="A black and white photo shows people protesting on the steps of a building with white columns." src="https://images.theconversation.com/files/455626/original/file-20220331-23-shei1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/455626/original/file-20220331-23-shei1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/455626/original/file-20220331-23-shei1q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/455626/original/file-20220331-23-shei1q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/455626/original/file-20220331-23-shei1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/455626/original/file-20220331-23-shei1q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/455626/original/file-20220331-23-shei1q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Students organized by the Moral Majority organization rally on the steps of the Capitol in Washington in 1984 in support of school prayer.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/students-representing-each-of-50-states-rally-3-7-on-the-news-photo/514704132?adppopup=true">Tim Clary/Bettmann via Getty Images</a></span>
</figcaption>
</figure>
<h2>Lower court rulings</h2>
<p>The coach’s suit raised two major claims – namely that the school board violated his rights to freedom of speech and religion. However, the Ninth Circuit twice rejected Kennedy’s claims, in <a href="https://casetext.com/case/kennedy-v-bremerton-sch-dist">2017</a> and <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/18/20-35222.pdf">2021</a>, resulting in his appeal of the second case to the Supreme Court.</p>
<p>The Ninth Circuit denied Kennedy’s claim that he had the right to private free speech on the field, reasoning that because he was a public employee, reasonable observers could have assumed his prayer had the board’s support. In particular, the court found that he acted as a public employee, not a private citizen. The court did explain that educators are free to display their faith on their own time, such as when Kennedy sat in the stands as a fan during a game after he was suspended.</p>
<p>Turning to Kennedy’s freedom of religion claim, the court was satisfied that the school board’s restrictions on his activity met a well-established principle: Public officials have to demonstrate a compelling government interest before they can limit someone’s fundamental rights, such as freedom of religion, and the restrictions must be narrowly tailored to achieve that interest.</p>
<p>Here, the court accepted the board’s position that it had a compelling interest to avoid violating the Establishment Clause. In so ruling, the court balanced <a href="https://education.blogs.archives.gov/2016/04/12/religious-freedom/#:%7E:text=These%20ideals%20were%20solidified%20in,prohibiting%20the%20free%20exercise%20thereof%E2%80%A6%E2%80%9D">the tension between the constitutional rights to religion, and from religion</a> – the Free Exercise Clause, and the Establishment Clause, respectively.</p>
<p>The Ninth Circuit also rejected the coach’s claims under Title VII of the <a href="https://www.dol.gov/agencies/oasam/centers-offices/civil-rights-center/statutes/title-vii-civil-rights-act-of-1964">Civil Rights Act of 1964</a>, which prohibits employment discrimination on the basis of race, religion, sex or national origin. Nor did the court accept his claims that the board failed to accommodate him, or that officials retaliated against him in not renewing his contract.</p>
<h2>Decision ahead</h2>
<p>As part of its analysis, the Supreme Court is likely to consider whether the coach risked sending the message he was acting with the school board’s approval, as a form of protected speech, or if his prayers were unprotected private speech.</p>
<p>In addition, the court may address whether Kennedy failed to act as a role model, as is expected of educators. Courts <a href="https://www.nytimes.com/2008/10/18/nyregion/18button.html">consistently agree</a> that school employees who work with students forgo some rights by virtue of their positions. For example, the Seventh Circuit affirmed that a school board in Indiana could dismiss a teacher who violated its policy by not remaining neutral about <a href="https://caselaw.findlaw.com/us-7th-circuit/1233551.html">current events in class</a>.</p>
<p>As in Kennedy, boards can choose not to renew the contracts of employees who violate their policies. But until now, public employees on the job who ignored their employer’s lawful policies have been unable to claim that they were exercising their rights to freedom of religion or speech as a defense. It remains to be seen whether the court will acknowledge that educators cannot ignore lawful directives at work, in order to avoid unduly influencing their students, or whether the justices will open the door to granting teachers greater freedom of expression.</p>
<p>Based on <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/21-418_3dq3.pdf">the oral arguments</a>, it is difficult to know how the justices will rule – especially when, as Justice Stephen Breyer observed, “One of my problems in this case is the parties seem to have different views of the facts.”</p>
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<p>However, members of the court more favorable to accommodating religion seem willing to allow educators greater freedom to express their views in school settings – as suggested by <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/21-418_3dq3.pdf">Justice Neil Gorsuch’s musing</a>, “If we thought that the School District misunderstood the Establishment Clause teachings of this Court, what should we do?” If so, this would signal a significant change.</p>
<p>As is often the case in high-profile disputes, the Supreme Court is expected to rule in late June or early July. While the case is unlikely to end disagreements over public employees’ prayer as free speech, in my view, the justices will likely walk a fine line in balancing the interests of educators who wish to pray at work and school boards seeking to avoid violating the Constitution.</p><img src="https://counter.theconversation.com/content/177980/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court will hear oral arguments in Kennedy v. Bremerton School District, a case stemming from a football coach’s prayers on the field, on April 25, 2022.Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.