Once again, I'm unable to resist giving a silly title to a post.
It's always fascinating to read court decisions which manage to "grab the headlines" for one reason or another (can we still use that phrase or is it too dated?). Generally, the decisions themselves are different from the summaries or interpretations of them which appear in the major and social media. This case was one for wrongful death and for negligence regarding the destruction of certain frozen embryos, or the killing of them as the court puts it.
Alabama law provides a cause of action for wrongful death including the death of children, born and unborn. The primary legal issue addressed by the court was whether "unborn children" include frozen human embryos for purposes of the wrongful death law of the state. The majority found that they are included among "unborn children." And that was, or at least should have been, that.
Where I practice, there is no such thing as a "special concurrence." For good reasons, I think. A search reveals that it is an opinion of a member of the court which concurs with the decision of the majority, for entirely different reasons than those relied on by the majority. Indeed, it need not really relate to the case itself. It need not address any of the issues raised or addressed by the litigants or the lower courts from which appeal was made.
Simply put, it may be entirely gratuitous. Normally, appellate judges refrain from addressing issues and arguments never raised in the courts below. Part of the reason for refraining from doing so is that the parties and the lower courts never had the opportunity to consider and speak to them. But this concern, it seems, need be of no concern to authors of special concurrences, and clearly was not a concern of the Chief Justice of the Supreme Court of Alabama in this case, who authored an opinion regarding which "gratuitous" may be too mild a description.
An amendment to the Alabama Constitution adopted in 2018 provides that Alabama, as a matter of public policy, supports "the sanctity of unborn life and the rights of unborn children, including the right to life." This provision is briefly noted in the majority opinion but isn't relied on it to any significant extent. Notwithstanding that fact, however, the Chief Justice decides to "take this opportunity" to address its meaning and legal effect, with particular focus on the proper interpretation of "the sanctity of unborn life."
There follows a discourse by the Chief Justice 22 pages in length, in which God is referred to 41 times. That's a little less than twice on each page. God isn't referred to except by the Chief Justice. The other opinions and Justices manage to address the case without invoking God or the fear of God, which as we'll see is called on if not summoned in support of the opinion of the Chief. He also refers to the Book of Genesis, the Book of Jeremiah, the Book of Exodus, portions of the works of Thomas Aquinas, Augustine, John Calvin and Jonathon Edwards, as well as several commenters on the Bible. I feel a certain compassion for the Chief Justice's clerk, who may have thought the research and writing involved in that position wouldn't address religious and theological works in such detail.
Rendered to its essence, the special concurrence amounts to an argument, or perhaps more properly a declaration, that the 2018 amendment to the Alabama Constitution must be considered, and followed, as a religious injunction.
This is made apparent from the concurrence's conclusion. The Chief Justice concludes his opinion with language of a kind I've never seen included in a legal opinion of any court during nearly 45 years of practicing law. It's so remarkable I must quote it:
"The People of Alabama have declared the public policy of this State to be that unborn human life is sacred. We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness. It is as if the People of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: "Before I formed you in the womb I knew you, Before you were born I sanctified you." Jeremiah 1:5 (NKJV 1982). All three branches of government are subject to a constitutional mandate to treat each unborn human life with reverence. Carving out an exception for the people in this case, small as they were, would be unacceptable to the People of this State, who have required us to treat every human being in accordance with the fear of a holy God who made them in His image."
The language is pontifical; thus the "We believe"--he purports to speak for the people of Alabama, much as a pope may purport to speak for Catholics everywhere in a certain capacity. More than that, he makes what is essentially a religious claim, and maintains that all three branches of the State of Alabama are required to follow it "in accordance with fear of a holy God..." Those who disagree with the Chief Justice, it appears, run the risk of being the subject of God's wrath. It seems that there are still those who conflate religion and the law. History tells us this is dangerous.
I wonder, I must admit, how he defines "likeness." But I wonder about that generally when it's claimed that God made us in his likeness. I can't understand how anyone would want God to be like us, or would worship God if he was.
I don't know if special concurrences are accorded any weight in Alabama, Concurrences generally are not binding precedent. I hope that this particular one would be considered, at most, persuasive. If it is the majority decision alone that's precedential, I don't think a theocracy has been established by it. One may well disagree with the Alabama Supreme Court's decision regarding the unborn, but it arguably follows from the law of that state and avoids the spectacular excesses indulged in by its Chief Justice. It must be hoped it will continue to do so.
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