Proposition 8 and the Constitution

The trouble with a bi-weekly column is that you sometimes get a bit behind the news. As everyone knows by now, the California Supreme Court upheld the legality of Proposition 8, which effectively bans same-sex marriage. It seems to me that this august body is reading the law through some lens other than its sworn duty to uphold and protect the Constitution.

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

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.

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 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. 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 only point that should be at issue in the same-sex marriage debate (which shouldn't be a debate at all) is equality. A religious institution has the right to proffer or deny its sacraments to anyone it chooses, presumably based on its system of beliefs. In fact, that right is generally strongly protected – if a practitioner of Santeria sacrifices an animal as part of their religious ritual, they are exempt from prosecution under animal cruelty laws. If a Native American group takes peyote as part of their rites, they are similarly exempt from the drug laws. So if a religious groups wishes to bar same-sex couples from the sacrament of marriage in their church, they have that right and the right is and should be inviolable. But the government operates (or should operate) under a different ethic, the ethic of equality. This is no less true for same-sex marriage than it is for cases of discrimination in housing or public accommodations. In short, the government should operate according to legislated regulations, not religiously dictated morality.

The Religious Right have a Constitutionally guaranteed right to their beliefs. 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.