There’s no more pretending that religion doesn’t play a role in the ruling that (at least) five conservative justices are readying to overturn Roe.
In a democracy founded on the separation of church and state, we’ve got a Supreme Court on the cusp of a decision that cements a theological view of abortion that even most Catholics don’t abide by.
All five of the justices who signed onto the draft opinion that would dump Roe (and any ruling associated with it)—plus Chief Justice John Roberts—are progeny of the Federalist Society. Over the past three decades, the legal group’s blessing has become a de facto requirement for Republican presidents who owed their election to white evangelical voters and ran on a promise to deliver an anti-Roe Supreme Court.
“Religion is the elephant in the room,” says Amanda Tyler, executive director of Baptist Joint Committee (BJC), a legal advocacy group for religious freedom that doesn't take a position on abortion. “We are all free to be religious or not, but we expect our government to be secular and to rule for all Americans and not for their religious views. And that principle is being threatened by at least the appearance of what’s going on in this case,” Tyler adds.
She points out that the words “religion” or “religious” do not once appear in Alito’s leaked draft opinion, yet he calls abortion “a profound moral issue”—phrasing that goes beyond the rule of law. “Many people read into the word ‘moral’ a religious objection, even though he’s going out of his way not to use religion,” says Tyler, which is why she calls it the elephant in the room.
Rachel Laser, the CEO for Americans United for Separation of Church and State, is more direct. She calls the leaked draft “religiously based opinion” masking a conservative political agenda—or maybe it’s the other way around. Either way, she says, “It’s frightening that the Court is providing one narrow viewpoint” at a time when some “very Catholic countries have loosened their restrictions,” such as Ireland and Mexico.
She calls the looming decision by five Federalist Society alums “a flagrant violation of the separation of church and state…an assault on the core pillar of our democracy and the DNA of America.”
The ascendancy of conservative, anti-Roe Catholic jurists has been forty years in the making, dating back to the founding of the Federalist Society in 1982.
“The intersection of the religious right with conservative politics occurred with the anti-abortion agenda, and because evangelicals were lacking a bench of legal scholars, they had to turn to Catholics,” says Randall Balmer, a professor of religion at Dartmouth College. “Political conservatism is baked into Catholic legal scholarship.”
The Federalist Society had its first big wins during the George W. Bush administration when it successfully proposed and placed Justices Samuel Alito and Roberts—two conservative Catholics—on the Court. “Nobody owed their election more to the religious right than Bush,” Balmer told The Daily Beast, “And because evangelicals didn’t have a legal bench, for a long time they outsourced their ideas to conservative Catholics.”
Granted, Catholics are not monolithic on abortion.
“In public opinion, it’s white evangelicals who are far more adamant about abortion than Catholics,” says Jack Pitney, a professor of American government at Claremont-McKenna College. They’re the audience Republicans reach with their anti-Roe litmus test. Catholics line up as most voters do—with two-thirds saying Roe should not be overturned. Catholic Bishops are as out of touch with public opinion as the SCOTUS five.
When in doubt about a judicial nominee’s inclination on Roe, the Federalist Society could confidently vouch that Justices Neil Gorsuch and Brett Kavanaugh would be safe picks to deliver on the former president’s promise to overturn Roe. Kavanaugh became the vote that, with Roberts, provided the anti-Roe Five. Justice Barrett turned five into six, providing Roberts the room to dissent on “protecting the institution” grounds, knowing the conservative position would hold.
An anti-abortion Catholic and an incrementalist when it comes to the law, Roberts favors moving more slowly to restrict abortion rights. He’s the chief justice, and the certain turmoil that will come with overturning a law that’s been in place for almost fifty years will generate chaos and tarnish his legacy.
In a celebration of the Federalist Society’s 25th anniversary at Washington’s Union Station in 2007, the late Justice Antonin Scalia, a founding member, told the crowd of almost 2,000: “We thought we had planted a wildflower in the weeds of academic liberalism…Instead, it was an oak.”
When Scalia died unexpectedly in February 2016, Republicans blocked President Barack Obama from filling his seat, arguing that his successor be left to the next president.
That May, longshot candidate Donald Trump enlisted Leonard Leo, co-chair of the Federalist Society’s board, to give him a list of 11 judges (which soon grew to 21) that would give him the conservative bona fides. A-thrice married wealthy playboy and longtime pro-choice Democrat, Trump knew he needed to win over Republican voters that were skeptical he could be trusted as president to reflect their values.
“All picked by the Federalist Society,” Trump boasted. “All gold standard,” Trump declared as he rallied conservative voters with the promise of delivering the Court they wanted.
Leonard Leo is a devout Catholic who makes frequent trips to the Vatican, where he surely gets a hero’s welcome for facilitating the six-vote conservative and Catholic majority on the Court. Following Trump’s election in 2016, Leo became a regular visitor to the White House to help the 45th president fulfill his promise to the white evangelical base that turned out in droves to vote for him.
When Amy Coney Barrett, a law professor at Notre Dame at the time, testified in 2017 before the Senate for a lower court position, Democratic Sen. Dianne Feinstein voiced concern about her religious affiliation with an evangelical offshoot of the Catholic Church. “I think whatever a religion is, it has its own dogma,” Feinstein said. “In your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you.”
Feinstein was castigated—and not just by Republicans—for straying into territory that felt uncomfortably close to a religious test. Three years later, Democrats questioning Barrett for the Supreme Court didn’t quiz her on her religious activism and what connection, if any, it might have to her views on Roe.
Barrett became the sixth conservative Catholic to sit on today’s Court. A seventh Catholic, Justice Sotomayor, was appointed by President Obama. Some dispute Justice Gorsuch’s religious identity, noting that he had a Catholic upbringing but as an adult, has mostly attended Episcopal churches.
Even so, it’s a stunning turnabout in religious affiliation, and not a coincidence that the main reason we’re about to lose Roe is the moral argument advanced by the Catholic church.
More fights lie ahead as the uneasy truce about viability and access to abortion collapses under the weight of five unelected justices. “This isn’t a religious freedom case. This is an abortion rights case,” Amanda Tyler of the BJC told The Daily Beast.
“If Roe is overturned, in a post-Roe world, religious freedom arguments will be made by abortion advocates. The religious objection is not only on one side.”