State Marries Church At the Alabama Supreme Court

The mid-February decision by the Alabama Supreme Court to overturn a lower court ruling and allow a wrongful death lawsuit to proceed against a hospital that left an in vitro fertilization facility unsecured, leading to the breakage of frozen human embryos conceived and stored in the laboratory, hit like another howitzer in the long-running war over abortion rights.

There were two stunning aspects to the case that set the commentariat wires buzzing.

One was the court’s determination that embryos, conceived in a petri dish meetup of sperm and eggs, gestated for 5-7 days and then frozen for later implantation into a womb, meet all the criteria of human children while in that frozen state.

Plenty to talk about there—including the fact that such an embryo, called a “blastocyst,” is comprised of between 100 to 120 cells, totaling one-tenth of a millimeter. (A millimeter is .039 of an inch, so one-tenth of that.)

But the second aspect was Chief Justice Tom Parker’s concurring opinion, which was in significant parts so drenched in religious constructs and imagery that it read more like a jeremiad from a fervent evangelical Christian pastor and anti-abortion activist than a reasoned legal decision from a secular judge.

This is no soft-pedal lamentation that religious concerns have to fight for crumbs swept from the table of public policy. It is instead a full-throated demand that they be at the table’s head, and being God-sanctioned as they are, should get the only vote…

Associate Justice Jay Mitchell had actually written a carefully crafted legal case for the majority, which can and has been disputed on its merits. But he built it mostly on three legal planks: the first an Alabama law (the “Wrongful Death of a Minor Act”) from 1872, and the second a constitutional amendment (the “Human Life Protection Act”), which was approved by 59% of Alabama voters in 2019, but was subsequently held up on appeal until the United States Supreme Court overturned Roe v Wade in June, 2022 and the amendment became law.

Third, and perhaps most novel: multiple citations from the “Merriam-Webster Collegiate Dictionary,” the “Oxford English Dictionary” and others of its ilk.

Mitchell’s etymological foray saw him working to uncover current and historical meanings of the word “child,” which, like many such efforts, is not as easy as it may sound. (He gives it three pages or so in his 25-page opinion.)

He did so in order to address two crucial questions: Does the above-mentioned blastocyst, stored in a lab freezer at -321 degrees Fahrenheit, lying there as a microscopic sack for up to 30 years (the current record for successful IVF births), meet the definition of “child,” with all the rights and protections afforded a living human being?

And: Is there any legal difference within that definition between an embryo conceived and growing in a mother’s womb, and a frozen “extra-uterine” embryo neither conceived nor living in a womb, but hopefully destined for it at some undetermined time in the future?

Mitchell’s majority opinion answered yes to the first of those questions and no to the second.

It should surprise exactly no one that the implications of that opinion alone stirred up a tempest of unresolved and previously unimagined questions. But the case turned into a Category 5 hurricane once the concurring opinion from Chief Justice Parker blew its way into the national conversation on abortion and the separation—or not—of church and state.



We should be clear that contrary to media reports that seized on Parker’s overtly religious 22-page concurring opinion as if it represented the court’s entire viewpoint, both Mitchell and the other three justices besides Parker who wrote concurring opinions stuck mostly to the legal issues raised by the majority.

(Associate Justice Greg Cook was the sole dissenter, topping all his colleagues’ output with a 56-page tome that turned heavily on the issue of separation of powers. He contended it should be the legislature, not the courts, who define exactly what they mean by “minor child” and various other terms—“”person” and “unborn child in utero” among them—that make appearances in the cited statutes without any further elaboration.)

That said, the media—this media person included—must be forgiven for either figuratively or literally gasping at both the content of Parker’s opinion and the vehemence with which he expressed it.

This is no soft-pedal lamentation that religious concerns have to fight for crumbs swept from the table of public policy. It is instead a full-throated demand that they be at the table’s head, and being God-sanctioned as Parker insists they are, should get the only vote.

Parker spends the first 12 pages of his opinion grappling with the etymology of the phrase, “sanctity of life,” since that phrase appears in the 2022 constitutional amendment as such:

“This state acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.”

Since he acknowledges that the amendment does not define “sanctity of life,” he sets about doing it himself, and he does so with a sharp theological turn worthy of the most devout PhD candidate at a divinity school.

His sources include the medieval Catholic St. Thomas Aquinas, the firebrand 18th century minister Jonathan Edwards of “Sinners in the Hands of An Angry God” fame, the 17th century Dutch Reformed theologian Petrus Van Mastricht, John Calvin of “Calvinism” renown, and the biblical books of “Genesis” and “Exodus.”

Working systematically through those thinkers to support his contention that a frozen embryo is a child that represents the sanctity of life from the first moment of conception, he offers these biblically based rationales:

“In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) 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. Section 36.06 (of the constitutional amendment) recognizes that this is true of unborn human life no less than it is of all other human life—that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”



Now: Judge Parker is most certainly entitled to practice and understand his religion as he sees fit, to swallow as whole literal truth various theological constructs of a male God whose “wrath” we must avoid, who “made” us in “His image,” who views certain of our behaviors as personal “affronts,” and so on.

But as a state Supreme Court Chief Justice in a religiously pluralistic nation, he has no right at all to speak for the people of Alabama or anywhere else in wrapping a judicial decision up in a lengthy set of theological premises based on his personal belief system.

The Constitution, not the Bible, should be the leading light in his decision-making, and it is not for nothing that the Constitution makes no mention of God at all but does specifically prohibit “religious tests” for public office, and states in its First Amendment that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 

He is also not entitled to define exactly how “sanctity of life” is to be understood by anyone else but himself when his analysis so clearly and emphatically relies on a personal and obviously evangelical belief system.

I, too, embrace the “sanctity of life” with all my being, but share virtually nothing else of Judge Parker’s definition and his other theological views.

This should not be a hard concept to grasp for any American concerned with not having their own religion (or lack thereof) impinged upon by the religious precepts dear to a clearly overreaching judge’s heart.


A thought experiment: Muslims are slowly making inroads in the judiciary across the United States. (President Biden named and the Senate confirmed the first Muslim to the federal bench last June, to the U.S District Court for Eastern New York. A woman, no less.)

Suppose a Muslim judge quoted extensive passages from The Koran to underpin a decision. The outcry would be immediate and loud—as well it should be.

Encouragingly, it seems to have been at least somewhat the same in the case of Judge Parker.

And to place the seeming outrageousness of his opinion in context, subsequent media reports revealed him as a “Christian dominionist” involved with the New Apostolic Reformation, an evangelical movement that believes, among other things, in “spiritual warfare,”  the actual existence of angels and demons, that Donald Trump has been anointed by God to lead the U.S. out of the demonic grip of liberals, and that Christians must seize control of the “Seven Mountains” of cultural and political influence—education, media, religion, family, business, entertainment and government—in order to save the country and prepare for Christ’s Second Coming.

According to Seven Mountains ideology, that “control” won’t necessarily make it illegal not to be a dominionist believer in the U.S.A., but make no mistake: Any seat at the power table of national life will be in a very deep corner.

On the very day of his court’s IVF decision, Parker went on a dominionist radio show and told the host that God is “equipping me with something for the very specific situation that I’m facing” as chief justice.

All of which rather strongly suggests that vigilance will be required for a long time, if not forever, as people of other faiths or no faith hold fast to the Constitution and Thomas Jefferson’s subsequent formulation of the “wall of separation between church and state” as the best guarantors of religious freedom for all.

The entire 131-page Alabama Supreme Court opinion can be accessed here. Skimming permitted (though it is an enlightening read…)


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2 comments to State Marries Church At the Alabama Supreme Court

  • Robert Spencer  says:

    The decision by the Alabama Supreme Court, spearheaded by Chief Justice Tom Parker (any relation to “Hanging Judge” Parker?), to overturn a lower court ruling, which dismissed a wrongful death suit related to IVF, shook most. The push back was immediate and far-reaching. Justice Greg Cook, a dissenter on the Alabama Supreme Court, stated it ignored existing law and misinterpreted Alabama’s 1872 Wrongful Death Act. Several state legislatures, including Alabama’s, quickly passed laws protecting IVF. In a MSNBC interview, Michael Moore said “a bunch of little embryos [were] running up and down the hallway, you know, twenty-four hours after they’re declared legally children.” SNL performed a skit interviewing a frozen embryo. Despite the fact many Americans from all walks of life oppose the Alabama Supreme Court decision on IVF, it will do nothing to stem the power of the Christian Nationalist movement now consuming the Republican Party. Beware. Hitler laid the foundations of his Third Reich upon the racist dogma of Christian Nationalism. Christian Nationalists have replaced Jesus’ “Sermon the Mount” with “Seven Mountains”, an attempt to paint the entire American landscape in bold Christian colors. I have two closing questions for Chief Justice Parker. First, is your reference to a frozen embryo being made in the image of God the one depicted in Michaelangelo’s “Creation of Adam”? Second, are you familiar with “The State of Tennessee vs. John Thomas Scopes”?

    • Andrew Hidas  says:

      I think what most struck me about this was how extraneous Parker’scomment was; how he went out of his way to dig in deep and take an all-out swing at what he figured was a rare opportunity to go for the fences of overt Christian nationalism. He could have just quietly concurred and been done with it, but it was just too tempting to let his audience of now millions know just what he had in mind. And in a strange sense, we owe him our gratitude for putting his and his movement’s cards out on the table, and let us do with it what we will. I imagine his fellow travelers are falling over themselves in saluting him.

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