Professor and legal commentator Marci Hamilton posted an article on why she believes1 the Stupak amendment to the recently-passed health care bill in the House of Representatives is unconstitutional. Her theory is, in part, that the amendment violates the Establishment Clause. The basis for this claim, according to Hamilton, is that the “anti-abortion movement is plainly religious in motivation, and its lobbyists and spokespersons represent religious groups, as is illustrated by the fact that the most visible lobbyists in the Stupak Amendment’s favor have been the Catholic Bishops.” The Establishment Clause does not care whether this or that movement is religious.
We care about whether the legislation is religious. This religious-movement bit is a red herring.
(more…)