Wednesday, August 11, 2010

Religion and Proposition 8

          There are two simple sentences at the beginning of Judge Vaughn Walker's opinion in Perry v. Schwarzenegger invaliding Proposition 8, which banned gay marriage in California: A state’s interest in an enactment must of course be secular in nature.  The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose. These sentences are crucial for understanding the appropriate role of religion in government and in the passage of legislation.
          Plaintiffs challenged Proposition 8 as a violation of their Due Process and Equal Protection rights under the Fourteenth Amendment to the U.S. Constitution. A simple way to word these challenges is to say that the government must have a rational basis--some reason--whenever it passes legislation. Under Due Process, if the government denies a person the fundamental right to marry, it must have a compelling reason to do so. Under Equal Protection, if the government grants one person a marriage license but refuses a license to another, it must have some good reason for the distinction. A government allowed to act without reasons would be all-powerful and constantly violate individual rights. 
          Judge Walker's opinion was detailed and persuasive in explaining that the reasons favoring Proposition 8 were private moral and religious beliefs that were not the appropriate basis of civil law. He first described how Proposition 8 proponents abandoned previous arguments from the campaign that had asserted the moral superiority of opposite-sex couples. The rest of the opinion demonstrated the inadequacy of such moral arguments about gay marriage as the basis of legislation. The facts established at trial--demonstrated through the testimony of experts who had studied the history of marriage, compared gay marriage to heterosexual marriage and gay parents to heterosexual parents--demonstrated beyond serious reckoning that Proposition 8 finds support only in such [moral] disapproval. The idea that gay marriage was inferior to heterosexual marriage were not supported by any evidence offered by Proposition 8's proponents other than their religious and moral beliefs. As the opinion said at the beginning, however, personal moral and religious disapproval is not a secular purpose that can provide the basis for legislation. It is not a legitimate reason for the government to act. 

          One of the criticized aspects of the decision was one of the judge's findings of fact, #77, Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians. Was it  appropriate for the judge to comment about religious beliefs, which enjoy absolute First Amendment protection? Yes, for two reasons.
          First, the opinion made clear that religious beliefs about marriage enjoy constitutional protection. The law does not require any religious groups to recognize gay marriages. Religions enjoy the freedom  not to be forced to perform gay marriages and to teach their members that homosexuality is sinful. Nothing in Judge Walker's opinion undermines that freedom of religion.
          Second, the religious beliefs had to be mentioned because those beliefs were the only basis for Proposition 8 and so demanded analysis. The religion-based argument continued even after Judge Walker's opinion was issued, showing that the proponents do not understand the need for a secular purpose in the law. In critical response to the ruling, for example, the Catholic Cardinal Archbishop of Los Angeles blogged that Judge Walker had missed the one fundamental issue involved in Proposition 8: is marriage of divine or of human origin? According to the Cardinal: Judge Walker assumes that the institution of marriage is of human and civil origin, and therefore,   that "marriage" can mean anything any person wishes to ascribe to the institution. Wrong. The union of a man and of a woman in a life-long loving and caring relationship is of divine origin. No human nor civil power can decree or declare otherwise. Judge Walker needed to explain--and did explain--that such religious beliefs harm gays and lesbians by keeping them from the civil rights to due process and equal protection. He was not attacking religious beliefs. He was cogently explaining why they cannot be the basis of civil law. Religious beliefs are not a reason for the state to deprive persons of due process and equal protection.
          The state must act with a secular purpose, and its job is not to enforce the religious beliefs of one group of Americans on another group of Americans. The simple sentences at the beginning of the opinion are central to the protection of civil rights. 


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