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At nearly 1700 pages, the collection gave Garner a lot to read, so he might be forgiven for writing summarily, although not dismissively.In the limited space he had to deal with Berry’s work, Garner could not resist observing about Berry: “A man of Christian faith, he is opposed to abortion.” One would have to work hard to find evidence in Berry’s work of his Christian faith, and even harder to find evidence of its orthodoxy.
Would it allow for the provision of basic public services to religious organizations, even if the taxpayer makes no use of, or has no use for, that organization?
Must the Establishment Clause be used in the most restrictive ways possible, to insure the complete absence of religion in public life?
The connections to her general reading of the Establishment Clause are obvious.
What sorts of broad public accommodations might the Constitution provide for religious groups?
Absent is any notion of a public or a common good, or a serious discussion about how insurance plans actually operate in terms of the management of risk pools.
Should all persons buying into an insurance plan be required to cover risks they’re not inclined to, whatever the reason? Why would it be the case that only secular persons might be victims of coercion?
A reader doesn’t, however, need to search much to find what Berry has to say about abortion. In that essay Berry argues there should be no laws against abortion, and in general his essay cannot be said to be a defense of the “pro-life” position.
My guess is that Garner read only a small part of Berry’s works, but the gratuitous inclusion of the abortion reference raises the suspicion that writers for on abortion and the Establishment Clause of the Constitution.
That religious believers are coercing non-believers? That only a tendentious reading of the Establishment Clause can save us from a regressive collapse into rule by religious clerics, or religious fundamentalists? Mallally noted that all anti-abortion movements are characterized by “religious fundamentalism, fake news, propaganda and hysteria.” I take this to be an example of the radical divergence of views that I mentioned above, for it seems to me very much the case that Greenhouse is engaging in her own secularist version of all these pathologies. Her reading would render free exercise largely meaningless.
Perhaps the reason why there is “no chance” the Court will “be receptive to Establishment Clause arguments” is because they are good enough scholars to know that Greenhouse’s arguments have little to do with the Establishment Clause.