“A group of religious conservatives listed nearly a dozen Bible passages in an amicus brief filed with the Supreme Court” on Wednesday, October 9, 2024, in a case involving gender-affirming health care bans, Huffington Post reported (here).
The Christian Bible is the world’s most popular book, but it’s a combination of history and religious teachings, not a legal reference book.
First, I need to explain what an amicus brief is. Amicus curiae, literally “friends of the court,” are not parties to the case before the court, and aren’t entitled to participate in the case. The Supreme Court and other courts sometimes will invite or allow input from outsiders to help the court make a decision. A typical example is an environmental group weighing in on environmental litigation. An amicus brief is such a non-party’s written argument.
Now I need to explain what “legal authority” is. Quite simply, in this context, it consists of materials used by courts to make legal decisions, and include statutes, court decisions, legal reference materials, and persuasive writings such as legal articles.
Courts can refer to the Christian Bible as a source of moral authority, but it’s not legal authority in U.S. courts; that is, its precepts and teachings aren’t binding on judges. Indeed, using it as legal authority likely would violate the First Amendment Establishment Clause. In the U.S., converting religious law into secular law violates the separation of church and state.
That’s why the Ten Commandments can’t be laws in the U.S; murder is a crime because of legislatures made it so, not because God said, “Thou shalt not kill.” Some of the Commandments, e.g., “Thou shalt have no other gods before me,” aren’t even illegal in the U.S.
The case involves Tennessee’s ban on gender-affirming health care for minors. The question the Court must decide is whether this state law violates the 14th Amendment’s Equal Protection Clause. In their 42-page amicus brief, an anti-LGBQT+ religious group and conservative legislators listed 11 Bible passages as “Other Authorities.”
I guess this is okay, as such, because courts can look at non-legal sources for insight or whatever. For example, in a case involving defective auto repair, the court could consider a shop manual as “Other Authority,” although most lawyers would use it as evidence.
But let’s be clear about something: Those 11 Bible passages aren’t legal authority, and it’s not kosher for the Court to base a decision on them. The justices can discuss moral underpinnings of U.S. law, and all that, but the decision has to be based on legal, not Biblical, principles and authorities.
This amicus group is part of a larger push by the so-called “religious right’ to infuse Christianity into American government, society, and law. They’re opposed to separation of church and state, and argue it doesn’t exist, which is saying the Constitution doesn’t guarantee religious liberty. Is that constitutional?
That’s a slippery question, because the Supreme Court decides what’s “constitutional,” and this Supreme Court — which is dominated by six Catholic justices — has increasingly veered toward allowing religion-driven preferences and discrimination, and has been displaying a strong tendency to reinterpret the Constitution and overturn established interpretations. So it’s not looking good for LGBQT+ rights.