Democracy, Religion and Proposition 8

How can a free society reconcile the often competing values of democracy, religious liberty and the separation of church and state? This challenge was vividly illustrated by the recent controversy over California's Proposition 8, which forbade same-sex marriage.

In a democracy, the majority of citizens ordinarily may enact whatever laws they want. Some laws, however, are prohibited by the Constitution. For example, the majority of citizens may want a law denying African-Americans the right to vote or prohibiting Muslims from attending public schools, but such laws violate the Constitution.

Does Proposition 8 violate the Constitution? There are several arguments one might make for this position. One might argue that Proposition 8 discriminates against gays and lesbians in violation of the Equal Protection Clause. One might argue that Proposition 8 unconstitutionally limits the fundamental right to marry. One might argue that Proposition 8 violates the separation of church and state. It is this last argument that interests me.

Laws that violate the separation of church and state usually take one of two forms. Either they discriminate against certain religions ("Jews may not serve as jurors"), or they endorse particular religions ("school children must recite the Lord's Prayer"). Proposition 8 does not violate the principle of separation of church and state in either of these ways. It neither restricts religious freedom nor endorses religious expression.

What it does do, however, is to enact into law a particular religious belief. Indeed, despite invocations of tradition, morality and family values, it seems clear that the only honest explanation for Proposition 8 is religion. This is obvious not only from the extraordinary efforts undertaken by some religious groups to promote Proposition 8, but also from the very striking voting patterns revealed in the exit polls.

Proposition 8 was enacted by a vote of 52% to 48%. Those identifying themselves as Evangelicals, however, supported Proposition 8 by a margin of 81% to 19%, and those who say they attend church services weekly supported Proposition 8 by a vote of 84% to 16%. Non-Christians, by the way, opposed Proposition 8 by a margin 85% to 15% and those who do not attend church regularly opposed Proposition 8 by a vote of 83% to 17%.

What this tells us, quite strikingly, is that Proposition 8 was a highly successful effort of a particular religious group to conscript the power of the state to impose their religious beliefs on their fellow citizens, whether or not those citizens share those beliefs. This is a serious threat to a free society committed to the principle of separation of church and state.

The Framers of the American Constitution knew that throughout human history religious self-righteousness has caused intolerance, discrimination and injustice. They understood that religious self-righteousness is dangerous, divisive and destructive, and that it has led to untold ignorance and misery. It was for that reason that they embedded in our Constitution a fundamental commitment to the separation of church and state.

The Framers were not anti-religion. They understood that religion could help to nurture the public morality necessary to a self-governing society. But religion was to be fundamentally private. It was for the individual. It was not to intrude unduly into the political sphere.

But here's the rub: From a strictly legal perspective, it is next to impossible for courts to enforce the separation of church and state in the context of laws like Proposition 8. When a law does not directly restrict religious activity or expressly endorse religious expression, it is exceedingly difficult for courts to sort out the "real" motivations behind the law. As a consequence, courts are loath to invalidate laws on the ground that they enact a particular religious faith.

This does not end the inquiry, however. Courts also have difficulty in dealing with laws that do not expressly discriminate on the basis of race or religion or gender, but that were motivated by racial, religious or gender prejudice. But we know - as an essential part of our national character - that we as citizens should not support laws because they advance our discriminatory biases about race, religion, and gender. We know that it is un-American for us to enact laws because they implement our prejudices. We know that it is our responsibility to be tolerant, self-critical and introspective about our own values and beliefs and to strive to achieve our highest national aspirations.

The separation of church and state is one of those aspirations. Indeed, regardless of whether courts can intervene in this context, it is as un-American to violate the separation of church and state by using the power of the state to impose our religious beliefs on others as it is to use the power of the state to impose our discriminatory views of race, religion or gender on others.

This is the fundamental point that the religious advocates of Proposition 8 fail to comprehend. Like other citizens, they are free in our society to support laws because they believe those laws serve legitimate ends, including such values as tradition, general conceptions of morality, and family stability. But they are not free - not if they are to act as faithful American citizens - to impose their religious views on others. That is, quite simply, un-American.

This is not to say that individuals cannot attempt to persuade others freely to embrace and to act in accord with their religious beliefs. The First Amendment gives us virtually absolute protection to preach, proselytize and evangelize. But the fundamental point about religious liberty in the United States is that it is private. Christian Evangelicals have every right to try to persuade others to accept and abide by their beliefs. But they have no right - indeed, they violate the very spirit of the American Constitution - when they attempt to conscript the authority of the state to compel those who do not share their religious beliefs to act as if they do.

Comments

[Smith808]

WHAT?! AM I DELUSIONAL OR IS THIS REALLY A MORNING WITHOUT "PROUD MORMON?"

[JohnBisceglia]

The thing is, you simply CANNOT tax everyone equally while you are simutaneously dole out marriage certificates LIKE CANDY while denying this right to other Americans. You may TRY, but some of us will react STRONGLY, thus April 15th.

If a wife-beating, alcoholic, child-beating, mistress-keeping, God-hating, murdering heterosexual man can get married in the USA, then I think I deserve the SAME as him.

He may be pure scum, but he deserves marriage rights. I think I do too.

[Zanti]

That was blunt! And spot on.

Just beautifully put. More than anything else, it's an issue of exclusion. You've nailed it.

It's amazing, the extent to which so many are okay with exclusion, so long as THEY aren't the excludees.

[pfrogger]

Nice word play.
You do know you just agreed with gay marriage, right?

[Mach8]

I guess the ultimate question is...

Is homosexuality behaviorly equivalent to heterosexuality? If the argument is for "marriage equality," are gay/lesbians also arguing that same sex relationships are equivalent to opposite sex relationships?

[BruceHNV]

The only things which are required to be equal, are the rights of people under the law.

People are not equal. Their wants, desires, dreams, problems, abilities and challenges are not equal. Their rights are.

[iczlite]

Correction: People are EQUAL and their right should be equal. People are not the SAME (none is), but one life is equal in value, importance and rights to another life.

[JohnBisceglia]

YES - Our souls are EQUAL to your souls. Or does one's plumbing determine rights in America?

[WhereIsTheTruth]

This may have been said before, but Proposition 8 does endorse some religions over others. There are religious institutions that are perfectly willing to perform the rites of marriage for same-sex couples but are now prohibited by law from doing so. Do think that does not constitute a breach of the First Amendment?

[Zanti]

No, it does not. The First Amendment forbids the formation of a state church, along with any requirement--or "test"--regarding membership in same. Our founders were determined not to follow the British state-church model. As we all know, they were determined to not follow England's example in many other ways, besides.

So, to the extent that it's an issue when a law "endorses" a religious view or value, it's not a First Amendment issue. The keep-relig­ion-out-of­-everythin­g idea is a modern misreading.

[WhereIsTheTruth]

Pardon me, but I did not introduce "keep-reli­gion-out-o­f-everythi­ng" into this discussion. In fact, I believe religion should be kept out of government (except to the extent where individuals beliefs guide their vote) and government should stay out of religion. My point is that enshrining one religious organizations beliefs into legislation implies a tacit attempt to deny the religious beliefs of others. No one has the right to claim Freedom of Religion at the expense of others rights. That has occurred.

[stanleyinbrasil]

Good point Zanti

[Doofus]

'The entirety of the text to be added to the constitution is:
"Only marriage between a man and a woman is valid or
recognized in California."' (Wikipedia)

Where's that religious endorsement exactly?

(As for me, I don't think a constitution should have such rules.)

[BruceHNV]

As the author mentions, it's not overtly religious on its face. It is merely a view subscribed to by many religions, and as it was swept to ratification by a relgious tidal wave, that fact is worthy of notice.

[OdaNobunaga]

Doesn't matter whether it endorses any religion or not.

The 14th amendment clearly states that people are to have "equal protection under the law regardless of race, religion, or creed."

And in case anyone is wondering, sexual orientation falls somewhere under "creed."

This is why Prop 8 is unconstitutional.

[PrickliestPear]

The "separation of church and state" does not mean private individuals can't vote based on their religious beliefs. That's a preposterous idea.

When you give people the vote, you can't dictate what can and cannot motivate them.

Having said that, there are some things that shouldn't be subject to whims of public opinion, and minority rights is one of them. That's what constitutions are for, and that's how this issue should be settled.

[Zanti]

"When you give people the vote, you can't dictate what can and cannot motivate them."

Exactly.

[WhereIsTheTruth]

I agree with that principle, but find churches funding legislative issues repulsive. Individuals can give all they'd like, but churches should be held to the same criteria as other non-profits. They should be enjoined from pushing a legislative agenda through donations of tax-free money.

[MDHutchinson]

Well stated. I do think the Separation of Church and state can actually be used to the progressive advantage in this situation given that a large sect of Episcopalians support same sex marriage, along with Methodists. Therefore, what gives the gov't the right to dictate who those churches can and can't wed?

[Doofus]

I am under the impression that society in various European countries has
worked this problem out, that 'couples' are 'married' if they wish and also
'civilly united'. The former is optional (& religious) & the latter is mandatory,
if you want to be 'hitched'. Legal rights, etc., are connected to the civil union.

Anyone more informed care to comment?

[WhereIsTheTruth]

I think we're in agreement. The religious institution should not be subject to vote, rather it is up to the church. The civil aspect is basis by which legal rights are provided. Churches have offered same-sex couples Holy Unions and other commitment ceremonies that carry no legal weight; likewise couples have been legally married civilly with no endorsement by a religious organization. The right of marriage is a civil issue, not a religious one.

[belasco]

Thank you! We need to change the language. "Marriage" should be what one does in a religious setting or other social setting and the state should only create and dissolve "civil unions".

[Doofus]

The issue is essentially semantic. Churches (in the US) seem to own the
definition of the term 'marriage', so a phrase like 'The right of marriage is a
civil issue, not a religious one' is deeply confusing at best. At some point
in US history (centuries before any now alive were married), American
civil authorities *naively* decided that marriage was a religious matter.
Europeans, having experienced a lot more religious strife than us, more
wisely decided otherwise.

[barbwiregrrl]

http://daywithoutagay.org/

The worldwide media attention surrounding the massive grassweb efforts
for g@y rights has been tremendous. Join the Impact was a HUGE success
and will continue to thrive because of your efforts.

NOW, it's time to show America and the world how g@ys love.

A day without g@ys would be tragic because it would be a day without love.

On December 10 the g@y community will take a historic stance against
hatred by donating love to a variety of different causes.

On December 10, you are encouraged not to call in sick to work. You
are encouraged to call in "g@y"-- and donate your time to service!

[TRIATHLON]

DRAWING THE HARD LINE!

The Government was established to often enact unpopular laws, that regulate society, like the (55mph) speed limit, or who has the right of way at an intersection, what is driving under the influence. And, so it is with the term MARRIAGE! Since there can be no middle ground between, Straights and Gays, The Church and Gay, then the Goverment must step in and make it clear what the standard of society will in fact be, for the general good of an orderly society.

The Goverment must now DEFINE: What constitutes a marriage, One Man and One Women, Multiple Partnership Marriages One Women with multiple males, One Man with mulitiple Females, What age constitutes the age of legal concent, what is the mental limits to allow marriage. Can Religious Organizations be forced to preform marriages as defined by the STATE. DEFINE: Is there a Right to Marriage, and what is that Right in the respect of the Rites of Religions.

The Gay Community has asked for a Hard Line Answer, but now must be ready for an answer that fits the good of the society as a whole. There will be no middle ground, over MARRIAGE! State Civil Unions could have found middle ground.

[Zanti]

Nonsense. This is all simply a matter of whether or not we should expand the traditional definition of marriage to include LGBTs. I'm among those who believe that doing so wouldn't cause any harm at all, and that to NOT do so would constitute depriving LGBTs of an established right. And for no good reason.

People have a right--a duty, in fact--to stand up for their rights and interests. No matter how much you, or people like you, believe people should be punished for challenging the status quo. Our country wouldn't be here if a group of brave souls hadn't challenged the status quo of their day, would it?

[BruceHNV]

Well put.

[LewDan]

Marriage is a personal/religious matter. Marriage licensing was justified as contract enforcement. The government has no need to regulate marriages and never has, it does decide which marriage contracts to enforce based on how substantively they can be proven. Regulating WHO may marry IS unconstitutional and a violation of individual civil rights and the separation of church and state. until the church starting perverting the law for its own ends ALL legally enforceable marriages WERE Civil Unions entered into by obtaining and registering a marriage license. Any other religious observances were separate and irrelevant to government enforcement of marriage contracts. Until now.

[Pearlswan]

Interesting that you type "marriage, One Man and One Women." Because that is what marriage currently is--between one man and many women--women is plural of woman. A man can have as many wives as he wants as long as he divorces the last one before he marries the next. Seems like a tradition of serial polygamy to me, especially since the same man could father 5 children with each woman he marries regardless of whether his paycheck can even support that many dependents. Ask any kid who is a victim of this tradition--is separate equal? Does the kid living with their parent get the same treatment as the kid living separate from their parent? Separate is not equal. So says the US Supreme Court (Brown v. Board of Education, 1954).

[LeftRight]

But at the same time a single woman can also marry several MEN in order, provided that SHE divorce each one before marrying the next one. She could also have five children, with five different men, not retain custody of any of them and have to pay child support!

[MDHutchinson]

RESPONSE TO TRIATHLON PT. 2

Beyond that, the Bill of Rights guarantees the separation of church and state. As you may or may not be aware, certain houses of worship and religious institutions are divided on the issue of same-sex marriage. Some Episcopalians and Methodists for example have been performing same sex weddings. Why then should the government have the right to tell religious leaders who they can or can't wed in their houses of worship? Unlike Middle East theocracies, in the United States, we don't force one person to live by another's interpretation of scripture. Period.

Therefore, the government has a choice when it comes to marriage as a legal institution. Either all committed monogamous relationships are recognized as "Unions" and given equal protection under the law, leaving the term "marriage" in the hands of the individual churches, or "Marriage," is the official legal term, and cannot be denied to same-sex couples, given the Supreme Court ruling in Brown v. Board of Education that separate is inherently unequal.

Bottom line, your personal beliefs, religious or otherwise, don't give you the right to declare what is "for the general good of an orderly society." And if you are a true Christian, you should know that tolerance and humility are virtues and pride a sin.

[FJRinLA]

NO...GAY POLITICAL ACTIVISTS HAVE A CHOICE

AND WHAT THE LAW WILL PROTECT

The law will protect parental rights of Christians to not have homosexuality and gay marriage taught in public schools as the moral equivalent of heterosexuality and traditional marriage.

And that really is the point of all this, now isn't it?

I don't object to anyone doing what they want.

I am pro-choice on Abortion, Gay Marriage, and Tongue-Kissing Domestic Pets. But I don't want any behavior that exists and that could be petitioned to be protected under the Constitution, to be presented to public school students as normative.

Of course, everyone wants their behavior affirmed and validated by society. But the reality is that no government on earth will rob parents of the right to introduce the concepts of sexuality and marriage to their children in a manner and at a time of their choosing consistent with their own family's values.

So the choice for gay activist leaders is to continue pushing that moral equivalency be promoted in public schools forcing states to keep banning same sex marriages to protect their parental rights; or to find a permanent accomodation with liberal Christians that preserves both gay marriage and parental rights.

[MDHutchinson]

RESPONSE TO TRIATHLON PT. 1
Very likely the most illogical and poorly constructed argument against same sex marriage I've ever come across. And I'm not just saying that because I disagree with your position. I've actually heard some rather compelling arguments from the other side that have forced me to explore the issue in new ways. However, your "HARD LINE" stand is just plain embarrassing.

First, the government does not exist to "often enact unpopular laws" as you contend. The fundamental role of government is to maintain security and order within a community. We give up absolute freedom (which would result in a state of anarchy) so that we can protect the inalienable rights of all citizens. In the Magna Carta, those rights are life, liberty and property. In the Declaration of Independence, it's life, liberty and the pursuit of happiness (property being implied.) The 55 MPH speed limit or DUI laws exist to protect both the life and property of others on the road. If I drive recklessly, the government has the right to punish me for endangering others. If I drunkenly run a red light and kill someone, I have deprived that person of their life and will accordingly be punished by our criminal justice system.

Now please explain to me how two people of the same sex who want to spend the rest of their lives together in a legally recognized monogamous relationship threatens your life, liberty or property?

[EmilyRW]

This doesn't violate any sort of separation of church and state. There is a non-religious argument to be made and this doesn't deal with any specific religion. Jews, Muslims, Christians, Buddhists, Atheists, any type of person ever can be against gay marriage.

This does violate the definition of "property" as it's been defined by the Supreme Court. Property includes the right go marry. (Look up Meyers v. Nebraska.) Therefore, this is the most obvious constitutional argument against Prop 8. And it's a legitimate one.

[Doofus]

Problem (one anyway) is the first amendment prohibits laws "respecting an establishment of
religion" or the free exercise of religion. 'Marriage' is essentially (if not exclusively) a religious
rite. We are stuck with something of a paradox. It seems that the 1st amendment could mean
that you can't even *define* marriage (because it's religious in nature), let alone 'regulate' it.

[mercury613]

Marriage is not essentially or exclusively a religious rite. A heterosexual couple can get married in a civil ceremony completely devoid of any religious connotations, and it's still a valid, legal marriage.

[BruceHNV]

In our civil society, marriage is entirely a civil arrangement. The injection of a religious standard (or even a merely human emotional standard) on what is essentially a contract between qualified, consenting adults) is what's making this messy.

[Doofus]

Most would agree with you, but culturally, in the US, 'marriage' is
something strongly connected to religion. I say this as an atheist
who struggled with the moral 'impossibility' of getting married -
I did it *anyway*. We ought to figure out something else to call it.
POESSLQ, anyone?

[Zanti]

Establishment of religion means the establishment of a state church. We don't have one. Therefore, the establishment clause is alive and well.

We're not "establishing" religion by allowing it to exist within the framework of our culture. And, until the neo-lib movement started up, I'm not sure very many people would have even made such a weird connection.

Religion is part of our culture. So are a lot of other things. None of them threaten the state unless they do something threatening toward it. Such as, for instance, polluting the air for profit. Or using tax dollars to make illegal investments and/or give perks to CEOs. Or concocting bogus wars to put money in the pockets of corrupt contractors. Stuff like that.

While we're focusing on religion as The Big Threat to Democracy, the forces of business and war-for-profit continue to wash the ink from our Constitution.

[Doofus]

'Respecting an establishment' may be taken to mean e.g. 'acknowledging
a particular rule set down by a religion', in this case 'marriage is between
persons of opposite gender', which is prohibited. 'Free exercise' means
permission to enact such a rule, which cannot be prohibited (in effect).
So, therein lies the paradox.

[jhandduck]

If marriage is a religious establishment - as you argue - then why did it historically start before religion stepped in? Why is it that it exists in most cultures - those with similar and different styles of religion throughout the world?

And most importantly - why do divorces take place exclusively in the court system? - the horrible secular court system? - and NOT in the church? The best argument that marriage is a religious rite only falls apart here.

Hypocrisy at its finest - churches that are tax exempt influencing the rights of tax paying individuals (who have no choice but to pay taxes) and stripping a subset of these folks of their inalienable right to be happy and productive in the way that they want to.

[Doofus]

I'm reasonably sure that divorce as such is not necessarily just something
that happens in a civil court, or that it necessarily happens in a civil court
at all, depending on circumstances. Annulment, for instance. Courts get
involved over contractual & property issues I suppose. But it's often not
just a civil matter. In any case, complexities are due to the fact that we
combine contractual & religious vows into the state of 'wedded bliss'.

[Zanti]

I'm still waiting for someone to point out where, in the Constitution, we're told how to vote. The C. forbids the formation of a state church and any "test" (requirement for membership) regarding same. But these are instructions to the GOVERNMENT, not the electorate. Right? People don't make laws and policies--we vote on them, but we don't make them.

The piece deliberately blurs the distinction between the enacting of a law and the act of voting on it. Two different animals, correct?

The author's weird suggestion that an improper vote can be invalidated re the establishment (or any other) clause ought to send cold, icy chills up and down our spines. What sort of society decides whether or not people voted for the correct reason? The Constitution provides a voting guide that, if violated, can result in the loss of our vote? Sorry, not in my democracy.

Paging George Orwell.

[BruceHNV]

It's not the REASON for the vote which can be found unsound. It's the FACT of the vote.

Our federal constitution forbids the making of laws which withhold equal rights.

[Zanti]

In other words, it has nothing whatsoever to do with state-church separation. So, you agree with me.

[LewDan]

Its the GOVERNMENT that is charged with enforcing the law. Your argument is senseless. If there were no government involvement you might have a point. But as you stated the Constitution controls government actions.

[Pearlswan]

You are wrong. Poll taxes were laws enacted to keep poor minorities from voting. They were outlawed because the reason they were made was in violation to the higher law of the land--the Constitution. Welcome to Law 101.

[Zanti]

I'm not suggesting that laws can't be unconstitu­tional--of course they can. What I'm criticizing is the suggestion that we're not allowed to VOTE any way we wish, and for whatever reason. Because we are. And some of those reasons can be quite stupid--gender of candidate, style of tie, haircut, etc.--but there are no guidelines as to how we choose to vote. If someone votes for Mr. X because Mr. X seems like a great guy to have a beer with, we can wonder why someone would use such an idiotic standard, but it's the voter's call.

And if someone decides to vote for Mr. X because he's good, Bible-carrying Christian, then that's how it goes. Myself, I look at qualifications first, and personal traits second, if at all. As I see it, we're not electing a friend or an entertainer. But a lot of voters seem to believe just that.

Laws, of course, can be at odds with the higher law of the land. However, as I very recently learned, there appear to be few restrictions on what people can propose by way of ballot initiatives--I honestly thought such things had to conform to strict rules, but color me stunned. In Calif., especially, anything goes.

Prop 8 should have been my clue.

[peterg76]

Just abolish marriage. Then you end the discrimination against single people, too.

Seriously, people never seem to want to ask why the state should be involved in marrying people. Figure out what marriage is for - in terms of public policy, not individual gratification - and it will be obvious whether heterosexuality and homosexuality matter. Marriage used to be a woman's career, but now men and women are equal. Marriage used to be about protecting children, but now the law typically says something like children have the same rights whether in or out of wedlock. If marriage is just about a reciprocal legal relationship between the adults, then it's a civil union.

And since when is marriage a right? And since when is an institution that requires *two* people an *individual* right?

[lulubaby]

People have been saying that gay marriage would be a violation of the Constitution, but rather, BANNING gay marriage is a violation of our fundamental rights defined by the Constitution. The Constitution clearly states that, "all men are created equal." This means that EVERYONE should have the same rights. This includes gays and lesbians and they should have a right to get married. You can't have a law based on a religion, like the one banning gay marriage (based on Christianity--the idea that marriage should be between a man and a woman) because not everyone is Christian. Not everyone believes in the same religion so this idea should not apply to everyone. A law like this also goes against the separation of church and state, the idea our founding fathers created this country on. In every aspect, Proposition 8 and all other bans on gay marriage are violations of human rights and equality. I know we will look back on this time in America and be ashamed that this was ever a law.

[BruceHNV]

The constitution does not state all men are created equal. The Declaration of Indpendence says that.

The Equal Protection clause mandating that all be treated equally is in the 14th amendment of the Constitution.

Your point is sound, but your sources are off.

[RMutt4m]

Are these the same founding fathers who noted that men were blessed with unalienable rights by their Creator?

Gays and lesbians do have the right to marry--just not someone of the same sex. There are precedents for this restriction (e.g., a man cannot marry his sister). To my knowledge no one has argued that is a violation of civil rights.

[BruceHNV]

Blacks do have the right to ride the bus - just not in front of whites.

Idiot.

[frogluv73]

True. I, a lesbian, should marry my best friend, a gay man and together we WOULD have an open, non-traditional marriage. He could see guys, and I'd mess with girls. We'd reap the benefits of a straight couple, get married under the roof of God, and turn traditional marriage upside down. We'd be better than a straight couple though, because we'd be doing what they do, except we'd be honest about the infidelity. We'd have some kids, and no Christian wing-nut would be the wiser. I think it's fab!!!

[Canuck27]

I've been married twice and I have a message for gays and lesbians DON"T DO IT!!!!

[BruceHNV]

Heh, heh. thanks for the levity...

[liebo76]

Oh, but I like to learn from my own mistakes. Thanks for the advice though.

[frogluv73]

I want the chance to be miserable too...

[RebelAlliance]

Me too AND I AGREE!

[BillShea]

Correct me if I'm wrong but (other than in theocracies) I believe the first efforts by the "state" to regulate marriage were in the U.S. to prohibit interracial marriages. I have never understood why the case for same-sex marriage has not rested exclusively on the separation of church and state. Thank you to Mr. Stone for surfacing this argument.