Tuesday, January 27, 2009

Column 140 – Constitution

Two of the most fundamental pillars of our system of government seem to be falling into disuse or, worse, misuse. These are the Constitutional guarantee of religious freedom and the principle of separation of powers and its sister principle, checks and balances – the distribution and balancing of power among the branches of the government so that no one branch is able to dominate the others.

The First Amendment to the Constitution leads with a seemingly simple but remarkably pregnant statement: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

In 1791, when the First Amendment was adopted, this was a remarkable thing to say. No country in the Western world at that time (and relatively few today) was without an established religion (sometimes called State Religion). Even today only 34 countries officially decline to establish any religion, and the US is one of them. This means that US citizens are free to practice any religion they choose or to practice no religion if they so choose, and it means that no one can impose their religious beliefs through law on anyone else and that a person's religious choice cannot be used as a qualifier for public office. This principle has evolved into the much-misunderstood "separation of church and state," but the principle is still there and still important.

In setting up government, the Founders sought to ensure that the will of the people was represented in the Legislative Branch, the execution of that will in the Executive Branch, and the primacy of the Constitution in the Judicial Branch. The functioning of each of these branches was designed to limit the others with the result that the principles in the Constitution could only be changed by the intentionally difficult process of amendment. The Founders' thinking was that, on the one hand, the Constitution was the armature on which the country would be built, and on the other hand, it was not perfect and would need to be changed with the times, though not lightly or frivolously. This system has worked pretty well for over 200 years.

When the Constitution was written, slavery was legal and widely accepted; when slavery was no longer accepted, the Constitution was amended to reflect that change in the public will and consciousness. Similarly for voting rights, taxation, and other issues. Where the public will proved to be misguided (i.e. prohibition), the process of amendment set it right. Works pretty well, don't you think?

Notwithstanding that, we are seeing some serious attempts to subvert these two Constitutional fundamentals. The so-called Religious Right believes that its moral values should stand above the Constitution and that these values, though manifestly religious in nature, should be the law of the land, First Amendment be damned. They would impose their values on all of us, most recently their values around the institution of marriage. Marriage is a funny thing in a country without an established church. Fundamentally it's a civil contract between two people. Period. In a country that, besides having no established church also has the free expression of religion, marriage may also be a religious sacrament. In this country, for the sake of convenience, the civil power has been delegated, though not exclusively, to clergy so that people don't have to have two ceremonies. The ultimate power, though, resides with the civil authority, as witness Nevada's requiring a State license for anyone, including clergy to perform marriages. Civilly, there is no basis for saying that the contract must be between persons of opposite gender any more than, a hundred years ago, there was a basis for saying the persons must be of the same race.

The Religious Right have a Constitutionally guaranteed right to their beliefs; they even have the Constitutionally guaranteed right to refuse the sacrament of marriage to anyone they choose for any reason they choose. They do not have the right to impose their values on the Constitution, and yet they try – as they are trying with abortion, stem cell research, and as they will try with other things. They can try – the Constitution guarantees them that right also – but they can't do it, and whatever your religious or moral beliefs about these issues are, you can't afford to let them.

The latest attack is on the California Supreme Court's likely review of Proposition 8, the gay marriage ban. The election results (Legislative Branch) are being invoked as holy writ – the "will of the people," with the argument that the Supremes can't overturn the ban because of the vote. Actually, they can. In fact, if they find the ban unconstitutional (and it is, in my view) they must. That's what checks and balances are all about. The Constitution is the supreme law of the land. You may not agree with that supremacy – in countries with an established church, God's law, as interpreted by that particular church, is the supreme law – but in this country, until and unless we change the whole nature of the United States of America, it is, and I'm free to say thank God for that.

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