Christian Nationalism and Its Growing Legal Footprint

Christian nationalism has seen a growing number of adherents in recent years. A poll found that 30% of Americans were “adherents or sympathizers” of Christian nationalism [1]. Conservative politicians have eagerly adjusted to this new reality. Some have gone so far as to call the separation of church and state a “myth” [2], claiming that the Framers never intended to form a secular state and that the modern interpretation of the First Amendment defies America’s founding principles. The influence of Christian nationalism can be seen through different prisms. Some have connected Christian nationalism to growing rates of political violence [3], especially in the aftermath of Jan 6. Others have raised concerns over Christian nationalist sentiment in American elections, particularly regarding the more fanatic elements of former President Trump’s bid for a second, non-consecutive term in office [4].  Perhaps the most alarming component of Christian nationalism’s rise has been the enactment of long-held beliefs of the Christian right into state law, with fetal personhood laws being the most prominent and extreme example [5]. The increasing significance of the Christian right within the U.S. legal system has drastic repercussions for multiculturalism, religious freedom, and American democracy.

Andrew L. White and Samuel Perry, two sociologists of religion, define Christian nationalism as “a cultural framework—a collection of myths, traditions, symbols, narratives and value systems—that idealizes and advocates a fusion of Christianity with American civic life” [6]. For Christian nationalists, secular and pluralistic principles represent ahistorical aberrations in desperate need of correction. The documents typically cited in support of the Court’s First Amendment jurisprudence, like Virginia’s State Constitution [7] and Jefferson’s letter to the Danbury Baptists [8], are disregarded in favor of a vision that endorses Christian primacy over a refusal to grant any religion undue favor. Supreme Court cases like Engel v. Vitale that reference a “constitutional wall of separation between church and state” [9] are either ignored or derided. But the true extent of the threat Christian nationalism poses doesn’t lie in its historical distortions. The impracticalities and dangers within Christian nationalism can only be analyzed through its impact on reproductive rights.

Over a dozen states have fetal personhood laws in place for a stage within pregnancy, and the laws of ten states insist on fetal personhood at every stage [10]. While many of these laws have been in place for years, the Dobbs decision created the impetus for implementation on a massive scale with drastic consequences. In the majority opinion in the Dobbs case, Justice Alito argued that “Roe “inflamed” a national issue that has remained bitterly divisive” and “for the past 30 years, Casey has done the same” [11]. Whatever Roe and Casey’s imperfections, it’s strikingly clear that the Court’s decision in Dobbs has done nothing to resolve the issue. If anything, it’s added a cumulative degree of perilousness and instability. 

Chief Judge Parker, in writing the decision that gutted in-vitro fertilization in the state of Alabama, argued that frozen embryos should be considered “extrauterine children” in need of state protection[ 12]. Parker referenced biblical concepts extensively, holding that “human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself” [13]. Parker’s opinion caused the complete cessation of IVF services in Alabama until the state legislature passed a law establishing civil and criminal immunity for IVF providers, and a more permanent solution has yet to be enacted [14]. While Parker’s connections to Christian nationalist groups make him distinct even in Alabama[15], he has more than his share of ideological counterparts within the federal courts. U.S. District Judge Matthew Kacsmaryk, for example, has adopted pro-life messaging in his rulings against mifepristone and misoprostol, crucial drugs responsible for more than half of abortions in the United States [16].

Many of the questions surrounding Christian nationalism’s impact on America’s legal system start and end with the Supreme Court. By overruling Roe and Casey, the Court opened the floodgates to a series of metastasizing legal debates, each one threatening the values and preconceptions that our democracy relies on. The Roberts Court has, for the most part, assumed an accommodationist view on Establishment Clause decisions, as reflected in cases like Kennedy v. Bremerton School District[17]. But the arguments state and federal courts are now greeted with disrupting the traditional separationist-accommodationist dichotomy. In the present moment, legal advocacy groups like Alliance Defending Freedom are proposing novel arguments with chilling implications–such as the notion that the 14th Amendment’s equal protection clause applies to unborn fetuses, which would amount to a federal ban on abortion embedded within the Constitution[18]. It’s becoming increasingly clear that the Court opened Pandora's box, allowing for groups whose visions explicitly exclude a majority of Americans to seize a great deal of momentum. Congressional paralysis and the close nature of this year’s presidential election make another thing abundantly clear: the Court might be the only institution capable of closing it again.

[1] Contreras, R. (2024, February 28). Poll: Vast majority of Americans cool to Christian nationalism as its influence grows. Axios. Retrieved March 24, 2024, from https://www.axios.com/2024/02/28/poll-christian-nationalism-americans-reject

[2] The Associated Press. (n.d.). In some political campaigns, separation of church and state ‘a myth’. NewsNation. Retrieved March 24, 2024, from https://www.newsnationnow.com/religion/in-some-political-campaigns-separation-of-church-and-state-a-myth/

[3] Armaly, M. T., Buckley, D. T., & Enders, A. M. (2022). Christian Nationalism and Political Violence: Victimhood, Racial Identity, Conspiracy, and Support for the Capitol Attacks. Political behavior, 44(2), 937–960. https://doi.org/10.1007/s11109-021-09758-y

[4] Sommerlad, J. (2024, January 15). Trump shares bizarre Biblical video saying God made him to be America's 'caretaker'. The Independent. Retrieved March 31, 2024, from https://www.independent.co.uk/news/world/americas/us-politics/trump-iowa-caucuses-video-god-b2478729.html

[5] Yousef, O. (2024, March 14). How 'fetal personhood' in Alabama's IVF ruling evolved from fringe to mainstream. NPR. Retrieved March 24, 2024, from https://www.npr.org/2024/03/14/1238102768/fetal-personhood-alabama-ivf

[6] Cooper-White, Pamela. “Unholy Alliances: Christian Nationalism, White Supremacy, and the Pursuit of Power.” The Psychology of Christian Nationalism: Why People Are Drawn In and How to Talk Across the Divide, 1517 Media, 2022, pp. 9–38. JSTOR, https://doi.org/10.2307/j.ctv1x67d5t.4. Accessed 31 Mar. 2024.

[7] Vir. Const. art. I, § 16

[8] Jefferson, Thomas. Letter to Nehemiah Dodge, Ephraim Robbins, and Stephen S. Nelson, "Jefferson's Letter to the Danbury Baptists," January 1, 1802. Accessed March 31, 2024. https://www.loc.gov/loc/lcib/9806/danpre.html.

[9] "Engel v. Vitale." Oyez, www.oyez.org/cases/1961/468. Accessed 31 Mar. 2024.

[10] Messerly, Megan. 2024. “'Scratching their heads': State lawmakers take a closer look at personhood laws in wake of Alabama ruling.” Politico. https://www.politico.com/news/2024/02/29/states-fetus-personhood-alabama-ivf-00143973.

[11] Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022)

[12] Godoy, Maria. 2024. “The science of IVF: What to know about Alabama's 'extrauterine children' ruling.” NPR. https://www.npr.org/sections/health-shots/2024/02/23/1233023637/ivf-alabama-frozen-embryo-personhood-abortion-supreme-court.

[13] Hughes, Trevor. 2024. “Alabama Supreme Court frozen embryos decision may imperil IVF.” USA Today. https://www.usatoday.com/story/news/nation/2024/02/20/alabama-supreme-court-frozen-embryos-ruling-ivf/72662533007/.

[14] Chandler, Kim. 2024. “Alabama passes law to protect IVF providers from lawsuits.” AP News. https://apnews.com/article/alabama-ivf-frozen-embryos-ruling-cab8171e80c88a088778dc7a187b7b5a.

[15] Sherman, Carter. 2024. “What Alabama's IVF ruling reveals about the ascendant Christian nationalist movement.” The Guardian. https://www.theguardian.com/world/2024/mar/02/christian-nationalism-alabama-ivf-ruling-politics.

[16] “Medication Abortion Now Accounts for More Than Half of All US Abortions.” 2022. Guttmacher Institute. https://www.guttmacher.org/article/2022/02/medication-abortion-now-accounts-more-half-all-us-abortions.

[17] "Kennedy v. Bremerton School District." Oyez. Accessed March 31, 2024. https://www.oyez.org/cases/2021/21-418.

[18] Ward, Ian. 2024. “They Took Down Roe. Now They're Fighting Abortion Pills. How Far is Alliance Defending Freedom Willing to Go?” Politico. https://www.politico.com/news/magazine/2024/03/25/head-of-alliance-defending-freedom-kristen-waggoner-speaks-on-mifepristone-00148565.