Intro and Background

On February 16, 2024, the Supreme Court of Alabama released the controversial ruling that an extrauterine embryo is considered a person in the context of the law. The ruling came from an appeals case in which three couples (the LePages, the Fondes, and the Aysennes) sued The Center for Reproductive Medicine after a nearby hospital patient broke into the premises and knocked over their frozen embryos, resulting in their destruction. This decision, following the 2022 reversal of Roe v. Wade, sparked uncertainty about the future of reproductive rights in America, as this decision may cause other states to place more restrictions on access to IVF treatments. The ruling was based upon the Wrongful Death of a Minor Act, an 1872 statute in Alabama law. This statute dictates that “A father or a mother, provided they are lawfully living together as husband and wife, shall have an equal right to commence an action for an injury to their minor child…” Notably, this appeals case was initially dismissed in the Alabama trial court, as they did not consider the extrauterine embryo to be a legal child. When the case was appealed, the Alabama Supreme Court disagreed, and ruled that “the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.” 

Alabama State Supreme Court Chief Justice Tom Parker filed a specially concurring opinion, in which he uses religious language to support his judgment. He cites section 36.06 of the Alabama Constitution, titled “Sanctity of Unborn Life,” which affirms “the sanctity of unborn life and the rights of unborn children, including the right to life[,]… that it is the public policy of this state to ensure the protection of the rights of the unborn child[,]… [and] nothing in this constitution secures or protects a right to abortion or requires the funding of an abortion.” Parker states that the word sanctity was defined as “the quality or state of being holy or sacred” at the time of its use in the Alabama constitution. Therefore, he argues, the “People of Alabama” have chosen this theological take on the word sanctity, which consequently invokes the words of Genesis 1:27: “God created mankind in his own image.” Justice Parker extends this to imply that “human life cannot be wrongfully destroyed without incurring the wrath of a holy God.” This seemed like a violation of the Establishment and Free Exercise Clauses of the First Amendment, which state that “Congress shall make no law respecting an establishment of religion.” Is it constitutional to then use religious text to support a court decision regarding the law? 

The Originalist Argument

Chief Justice Parker utilizes an originalist argument in his opinion, meaning that he interprets the state constitution and other legal documents as they were meant to be understood at the time of their creation. This is why he invokes the definition of the word sanctity as it was understood at the time that the state constitution was written. An originalist view focuses on the intent of the founders’ argument, which Parker cites as his reason for interpretation, when he writes “the goal of constitutional interpretation is to discern the original public meaning.” He extends his use of originalism to justify the usage of religious text as evidence, as “analysis must also ‘draw from deeper wells’ instead of relying ‘solely on dictionaries.’ ” Therefore, when interpreting the language used in the constitution, such as the word “sanctity,” instead of using the dictionary definition, he draws from ‘deeper wells’ and chooses to utilize its religious definition and connotation. He argues that “when the People of Alabama adopted § 36.06, they did not use the term “inviolability,” with its secular connotations, but rather they chose the term “sanctity,” with all of its connotations.” The word inviolability means being protected from attack and is a term preferred by advocates for secularism in law, free from “distracting theological connotations.” Parker disputes this by arguing that because the word sanctity was specifically used and has a religious connotation, religious text is fair game when interpreting the constitution. 

Parker further extends his originalist interpretation to include the interpretation of “English common law.” Many originalists appeal to English common law to interpret original documents. English common law serves as the basis for much of American common law, since many English laws were adopted when the Founders established the American government in the 18th century. Because of this, originalists argue that English common law is therefore an extension of American law as it is what lawmakers at the time based their reasoning on. Parker explicitly states that “English common law… has been expressly incorporated as part of the law of Alabama.” Many originalists defer to Sir William Blackstone’s Commentaries on the Laws of England when interpreting the constitution, and Parker is no exception. In his argument, he cites that “Blackstone declared that ‘[l]ife is the immediate gift of God, a right inherent by nature in every individual.’” By including this rationale, Parker yet again invokes the word of God and incorporates religious connotation in his legal argument. 

This case is indicative of a general larger movement towards incorporating religious reasoning as rationale in court rulings. In Kennedy v. Bremerton School District, a high school football coach was under investigation regarding a ritual in which he openly prays on the football field before and after a game every time. Many students, community members, and sometimes even opposing team members would join him in prayer, establishing this as a tradition. The school board eventually fired him for this practice, as it was not in compliance with their district policies regarding practicing religion on campus. The case made its way to the United States Supreme Court, where the court ruled that the coach’s actions were protected under the First Amendment. The language used in the main opinion, authored by Justice Gorsuch, is very sympathetic to Kennedy, the football coach under scrutiny. Gorsuch writes, “Like many other football players and coaches across the country, Mr. Kennedy made it a practice to give ‘thanks through prayer on the playing field’ at the conclusion of each game. Id., at 168, 171.” Upon reading the majority opinion, it seems as if Kennedy was practicing his right to free exercise of religion, and is therefore protected under the Constitution. This framing is very intentional, and is the basis for the outcome of the ruling, which states that Kennedy “was entitled to summary judgment on his First Amendment claims against the school district.” However, this is not representative of all the facts of the case. Justice Sotomayor starts her dissent with “Since Engel v. Vitale, 370 U.S. 421 (1962), this Court consistently has recognized that school officials leading prayer is constitutionally impermissible,” implying that this ruling breaks previous legal precedent. Because of this, we can see that the Supreme Court and other courts alike are starting to move away from a more impartial take on religious freedom to a more sympathetic one. She continues, “To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location.” By omitting these details, the court can more easily build a narrative around religious protection. In reality, the school district had reason to fire Kennedy, as they have a policy in which “[s]chool staff shall neither encourage nor discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity” and that “[r]eligious services, programs or assemblies shall not be conducted in school facilities during school hours or in connection with any school sponsored or school related activity.”

Constitutional or Unconstitutional?

The usage of religious language throughout Chief Justice Parker’s opinion is extremely relevant to the case as a whole. He used his opinion as an “opportunity to examine the meaning of the term “sanctity of unborn life” as used in § 36.06.” In simpler terms, he aims to explain how the term “sanctity” holds religious connotation, and its inclusion in the state constitution therefore grounds religious text as a code of law. Justices file a concurring opinion when they either agree with the outcome of a majority opinion, but not all of the rationale, or they have their own rationale to add that was not otherwise included in the majority opinion. In this case, Parker filed his opinion due to the latter.  Because his statement is a concurring opinion, it is not binding, meaning that it rarely becomes law. As such, it is technically allowed for him to use religious reasoning as a basis for his opinion, because it does not directly become law and therefore does not immediately violate the First Amendment. However, concurring opinions, especially those of an official as senior as the Chief Justice of a state Supreme Court can be used as dicta. Dicta is when an otherwise nonbinding argument made by a judge in an opinion is used as “persuasive authority” by other courts in future litigation. As such, Parker’s religious rationale behind his vote in favor of the majority opinion can be used in other courts to influence decisions which can become law. Therefore, his overtly Christian and religious rhetoric could directly influence lawmaking, which is inherently unconstitutional and a direct violation of the First Amendment. 

Conclusion

Though there is legal justification behind Chief Justice Parker’s incorporation of religious text and reason in his concurring opinion, the ramifications of this inclusion stand to violate the First Amendment. Furthermore, because he is such an influential member of the court, it is very likely that his religious argument was taken into consideration when making the majority opinion and ruling, which does have direct legal implications. This would also be a violation of the Establishment and Free Exercise clauses, which is dangerous as it imposes his own religious beliefs on his constituents, who do not all share his identity and background. Though he regularly mentions serving “the People of Alabama” in his opinion, by inserting religious texts, he is effectively alienating many Alabamans and is in fact doing them a disservice. Chief Justice Parker’s language worryingly bores more holes through the wall of separation. This is a tragedy for a country founded on the principles of separation of church and state.