Amendments On Abortion, 10 Commandments Could Be Unconstitutional

BIRMINGHAM, AL - When Alabama voters head to the polls in November, they will decide key leadership positions in the state and in Washington - all major statewide offices are on the ballot, as well as U.S. House of Representatives seats - but voters will also have the chance to approve or deny some amendments to the Constitution of Alabama of 1901. Two of those amendments will likely receive some backlash on the federal level, as one would allow the display of the Ten Commandments in public buildings, including schools, and the other would solidify Alabama as a pro-life state and "support the sanctity of unborn life."

Alabama Amendment 2, the State Abortion Policy Amendment, is "Proposing an amendment to the Constitution of Alabama of 1901, as amended; to declare and otherwise affirm that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, most importantly the right to life in all manners and measures appropriate and lawful; and to provide that the constitution of this state does not protect the right to abortion or require the funding of abortion."

In essence, A "yes" vote supports this amendment to make it state policy to "recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life" and to state that no provisions of the constitution provide a right to an abortion or require funding of abortions.

(For more updates on this story and free news alerts for your neighborhood, sign up for your local Patch morning newsletter.)

Rep. Matt Fridy, the amendment's legislative sponsor, said, "We want to make sure that at a state level, if Roe v. Wade is overturned, that the Alabama Constitution cannot be used as a mechanism by which to claim that there is a right to abortion."

Amendment 2 was approved by all voting Republicans and three voting Democrats in the legislature.

The Alabama Ten Commandments Amendment, Amendment 1, supports amending the state constitution to authorize the display of the Ten Commandments on public property, including public schools, and establish certain religious rights. The amendment also contains a provision preventing any public funds from being spent to defend the amendment in court.

The Ten Commandments Amendment PAC is leading the campaign in support of Amendment 1. Dean Young, former chief strategist for Roy Moore, is the chairperson of the committee. "Do the people of Alabama want to acknowledge God, the God of the Old and New Testament, the Christian God?" Young said in an interview with Alabama Media Group. Do we want to acknowledge the God that our nation was founded upon? Alabamians will vote, they will reckon on that day with God how they vote on this, that's how serious this is. Either we stand for God or we won't."

Critics have said placing these amendments on the ballot is merely a way for Republicans to make sure conservative voters show up to the polls in November and vote for Republican candidates for statewide offices, as the likelihood of being able to legally enforce these amendments is slim. But, would the expected federal backlash be enough to overturn these state amendments?

Brannon Denning, Associate Dean at Samford University's Cumberland School of Law, said he expects at least one of the amendments to be deemed unconstitutional.

"The Ten Commandments amendment is likely unconstitutional," Denning said. "Or at least it wouldn’t provide any additional insulation against a legal challenge. It is not true that merely placing the Ten Commandments among 'historical' documents will be sufficient to ward off a challenge. At best it is toothless, because the ballot explanation says something about allowing displays that are constitutional."

Denning said Federal courts would be deeply skeptical of new displays of the Ten Commandments, especially in schools. "Window dressing in the form of additional documents wouldn’t do the trick, I don’t think," he said. "And any challenge might be won by default, because the amendment also prohibits the expenditure of state funds to defend the amendment. So ,what’s the point, I wonder?"

Denning said Amendment 2 is likely "wishful thinking" by its supporters. "If the Supreme Court were to overrule Roe and Casey, withdraw all constitutional protection for abortion, and return the issue to the states, then, yes, that amendment would make abortion illegal in the state," he said. "However, even if Brett Kavanaugh is confirmed, I think the prospects for an overruling of Roe et al. is exceedingly slim. A case would have to make its way up the court system and four justices would have to vote to hear the case – the Court isn’t a self-starting institution – and even then I’m not sure that five justices feel strongly enough to overrule."

But, many proponents might say, what about states' rights? "Under Article VI of the U.S. Constitution, the Constitution, laws of the U.S., and treaties are the supreme law of the land and supersede contrary state law, including state constitutional provisions," Denning said. "Therefore, state laws that conflict with the Constitution are null and void; and the Supreme Court could have jurisdiction over such questions."

Denning said in order to understand the relationship between a state constitution and the Constitution of the United States, "It’s helpful to think of the U.S. Constitution as the physics of American law. That is, it is the law on which all other laws are erected. And any state or local law has to be compliant with the U.S. Constitution."

Denning said before the ratification of the Fourteenth Amendment, the Bill of Rights was understood to apply only to the federal government. "That changed after 1868 and the Supreme Court began to 'incorporate' the provisions of the first eight amendments through the due process clause of the Fourteenth Amendment and apply them to the states. Only the 3rd, part of the 5th, and the 7th amendments are not incorporated."

Photo Credit: Patsy Lynch/Shutterstock

Like the Birmingham Patch Facebook page for more local news.