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In a long discussion of the 1972 Supreme Court term in the Harvard Law Review, Professor Tribe made the following argument:

As often occurs when the progress of science exposes the complexity beneath events formerly conceived in simpler terms, inchoate feelings that could at one time have been clothed in secular trappings were thus forced into the mold of religious affirmations. For although none could deny that the developing fetus, and indeed the unfertilized ovum, represented "potential human life," and while all could agree that the infant at birth was fully and independently a human being and entitled to treatment as such, the question of when the mysterious discontinuity was crossed --when the embryo or fetus "became fully human"-- could not be discussed in secular terms at all. In fact, the only bodies of thought that have purported in this century to locate the crucial line between potential and actual life have been those of organized religious doctrine. It is important to recognize that this has not been an accident; for the question when human life truly begins asks not for a discovery of the point at which the fetus possesses an agreed-upon set of characteristics which make it human, but rather for a decision as to what characteristics should be regarded as defining a human being. And, at least at this point in the history of industrialized Western civilization, that decision in turn entails not an inference or demonstration from generally shared premises, whether factual or moral, but a statement of religious faith upon which people will invariably differ widely. . . .
I would argue that a broader establishment clause issue, going to a whole area of governmental regulation, is raised whenever the views of organized religious groups have come to play a pervasive role in an entire subject's legislative consideration for reasons intrinsic to the subject matter as then understood. The evil in such a situation need not lie in the particular statutes or amendments that emerge from so religiously charged a milieu, but in the continual pressures to which the milieu itself subjects lawmakers as long as they retain a decisionmaking role. Whenever this evil can be demonstrated, all substantive governmental controls within the "entangled zone" could quite plausibly be deemed tainted, and hence unconstitutional, in the absence of an affirmative demonstration that a particular control is needed to serve a compelling purpose that can be defined, and defended as applicable, in terms generally regarded to be wholly secular.

In his later work Abortion: The Clash of Absolutes, Tribe seems to have rejected this view. But what do you think about his original argument?


Reference: Harvard Law Review, November, 1973, p. 20-24. Copyright 1973 by the Harvard Law Review Association.