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 might 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.

(Cross-posted at The Huffington Post)

Comments

[James Page]

In response to Tammy, it is unfortunate that we tend to analyze this issue from the point of view of consenting adults rather than of children. Marriage without children is an absurdity, albeit painful for those men and women who are unable to conceive and have children. There is nothing that consenting adults receive as benefits of marriage that does not directly pertain to the care, protection, emotional stability, love, and psychological well being of the children who are brought into this world. No children – no need for marriage. Secular and religious authorities have recognized and enshrined this truth for as long as there has been human society. Every society that has taken a different direction has collapsed. The laws that we enact are to ensure that we survive as a society. Does homosexual marriage promote the success and long-term future of our society? Does the drive to homosexual marriage and other perceived homosexual rights constitute a tyranny of a (very small) minority? Very few people claim to be genetically homosexual (and there is no credible research that supports this position), most homosexuals and homosexual advocates proclaim that it is a life-style choice. If I get together with some other people and make a life-style choice, should the laws of our land be altered or uprooted because of that? Proposition 8 passed, regardless of how the voters decided to vote, because homosexual marriage is not beneficial to society. May be we should start thinking about “self-evident” truths rather than continually trying to bend and twist our constitution and laws just because we can.

[Curtis Strong]

Kimball,

I disagree, for a couple of reasons.

First, the "religious" reasons that are proposed here would not have led me to vote for Proposition 8, and I'm a religious person. So there is a major chicken/egg issue here that has been noted above. This leads to the problem I highlighted before: How do you know when religious people vote for religious reasons? It's impossible to tell, regardless of the proportions, just how much religious reasons played into the question. This is especially true when there were a few non-religious people who voted for proposition 8 as well...presumably those people had absolutely no religious reason to vote. What if this is a mix (which I think is probably the actual case with Prop 8) between religious and "secular," "economic," or "Professor Stonian" reasons? Is that enough to call the vote "un-American?" This borders on religion-bashing based on a bunch of statistics whose interpretation is sketchy at best, biased and insincere at worst.

Second, the "Stonian" reasons are incomprehensible. What are they? What if I vote for social security because of a religious conviction to help the poor, as opposed to a "humanitarian" reason to help the poor? It's a hogwasher's game. I've been on this blog for quite some time now, and Professor Stone has pushed this reasoning for a while, with your support, along with LAK's, and others. But to try and create a dichotomy between morality and religion is unproductive...it can't be done, because religion is a definition of morality, as opposed to a Kantian/Stonian secular view of morality, which can just as easily be recharacterized as an individual religious conviction.

With all respect to Professor Stone and what he's trying to accomplish here, he is trying to draw a line with his finger in the ocean. His is an indefensible conclusion based on a distinction that doesn't exist.

[Tammy Cravit]

James, the problem with your assertion is that, through surrogacy, foster parenting, adoption, and the like, there are more than 60,000 children in the United States who are being raised by same-sex parents[1]. And, doubtless, there are sizable numbers of people who are married who cannot, or choose not to, have children.

To argue that the only rational basis for affording marriage any legal status is to protect children is to argue that marriages involving people who are infertile, who are elderly, or who simply don't wish to have children should be annulled. Right? After all, you said that "No children – no need for marriage".

Setting aside theological dogma for a moment, the reality is that thousands of gay, lesbian, bisexual and transgendered Californians *are* in committed long-term relationships and *are* raising children. Many of them began families before same-sex marriage was legal in California, and most of them will continue to be families with or without the blessing of the State (via the rights of marriage). If you're really concerned about the well-being of the children, surely it would be better to have those families benefit from legal protections than to have them existing in the shadows at society's fringes, unprotected and vulnerable?

After all, it's all about the children. Right?

[1] - http://www.urban.org/publications/411437.html

[Josh]

The idea that a particular religious belief is "imposing" a traditional definition of marriage through Proposition 8 strikes me as simply laughable.

For one thing, the term "imposing" only has content when there is a status quo or other opposition position which is assumed to be not "imposed"-- that is, "forced" by anyone. Without a notion of something else, which is presumably "unforced" or "chosen" existing ex ante, there is no such thing as something "imposed."

Upon what basis can you make the claim that Prop 8 was "imposed" on some preexisting "chosen" or "unforced" ("unimposed," if you like) reality? I can see none.

It is not conservative rhetoric, but a pretty fair description of reality to note that Proposition 8 has a far greater claim to having been "chosen" (by about 53% of the voting populace) than did the five month old gay marriage right enacted by four judges on the California Supreme Court over a strenuous dissent from the other three. Assuming we don't like the "imposition" of moral beliefs on others, then how are we to tell who is doing the imposing? The only sensible way to do that (if one exists) would be by reference to pre-existing status quo-- not the five month long one that was "chosen" only by 4 of 7 Justices on the California Supreme Court, but by the literally thousands of years of history during which "marriage" referred only to men marrying women and vice versa. Under any sensible way of thinking, the judiciary imposed, not the people who freely "chose" Prop. 8-- unless you are prepared to say that all democracy is an "imposition." I would agree with that argument, but in that case, I fail to see how the word retains the derogatory content you appear to want to ascribe to it.

To the extent that this is an "imposition" because of some notion that the Establishment Clause makes it unconstitutional to enforce laws that the majority voted for in whole or in part because of their religious beliefs, you are wrong for two reasons. First, you are empirically wrong if you assume that there is no argument that does not depend on religion upon which religious people could have been relying to support the measure. Plenty have been and were put forward, including the threats to religious civil liberties that have materialized in Massachusetts in the wake of Goodridge, the fact that the state may want to subsidize only those sexual relationships that tend to be monogamous and are inherently procreative, and even the fact that we don't need gay marriage because we have a very generous domestic partnerships law. Those are not religious arguments qua religious arguments, and could stand up under any version of the establishment clause you would want to pick. If you want to go farther and say that the fact that religious people are more likely to find those arguments persuasive is by itself enough, then see argument #2. You are well on your way to facism.

Second, what I am afraid you really mean (and suspect I could show that you mean if I could question you) is that when religious people vote their religiously-informed consciences, that is an "imposition" because they are religious people and presumptively irrational. However, when non-religious people do the same thing, it is not an "imposition" because the very fact that they have no religion entitles them to a presumption of rationality and cool-headedness.

That argument is not only poorly-reasoned and self-contradictory (it is nothing less than the establishment of atheism by disenfranchisement of the religious), but, for lack of a more appropriate term, evil. Left intact long enough it will inevitably lead to the complete disenfranchisement of religious people and eventually to their imprisonment for their "irrational" and "intolerant" beliefs.

You are not peddling hate, yet. But if arguments like yours win the day, our grandchildren will be, and they will be citing your arguments when they do it. When that happens, remember that you were warned.

[Chairm]

Kimball said: "Chairm´s model would seem to consign sex to procreation only"

Not at all.

Sex integration is far more than "having sex", procreational or otherwise.

And regardless of the ratio of frequency of sexual relations to frequency of conception or child-bearing, society does need the relatively non-coercive influence of the contingency for responsible procreation.

These things combine to form a coherent whole.

Marriage is a social institution, foundational to civilization.

SSM is not foundational nor is it a bonafide social institution. It is incoherent. It lacks definitive criteria that sets it apart from nonmarital arrangements. It is sex-segregative and cannot provide for the unity of motherhood and fatherhood.

Whatever its merits (and demerits) the one-sexed arrangement (sexualized or not) is extrinsic to the conjugal relationship type and extrinsic -- even anti-thetical -- to the social institution of marriage.

Merging it with marriage would be highly unjust.

[al loomis]

it doesn't matter what reason those fools in california chose to vote against prop. 8, it is their right.

the minority group of fools would be worse off, in a state without citizen initiative, because it is likely to be even less 'progressive.'

there is nothing wrong with people voting against prop. 8, and nothing wrong with taking the decision to a federal court, in law.

but i would bet the electorate of california are a more reliable bulwark for minority rights than the supreme court. they got it wrong this time. come back in ten years, they'll get it right.