A cogent analysis in simple terms
Church and state: The issue of Prop. 8
James Brosnahan
Sunday, November 9, 2008
Proposition 8 has passed, denying to some the right enjoyed by other citizens in California, the right to marry. Now, the central question for the courts to decide is: Are gays in California equal, or can members of certain churches declare them constitutionally inferior?
The approval of a constitutional ban on gay marriage raises troubling but age-old issues concerning the lines between religion and government. Before the founders of our country separated church and state, there were hundreds of years of turmoil caused by one religion dominating the government and using it against nonbelievers.
In the aftermath of Tuesday's vote, do gays and lesbians in California have a reason to believe that they have been abused, discriminated against and relegated to a separate-but-equal status?
Yes, and that's why this fight is far from over. There will be a challenge under the U.S. Constitution. In the 1960s, the U.S. Supreme Court struck down a California constitutional amendment that limited fair housing on the grounds that prejudice could not be put into a state Constitution.
No one can forecast the outcome of this next fight, but there is bound to be some fallout that may harm those religions that so vehemently insisted that their beliefs be placed in the California Constitution. All religions require tolerance to flourish, but in Proposition 8 some religious groups aimed at and wounded gay people in California.
The drafters of the U.S. Constitution had a brilliant, experienced view concerning the importance of drawing the lines to protect religion on the one hand and civil government on the other. They put those lines in the First Amendment to the U.S. Constitution. Today, those lines are very relevant.
Government may not attack religion. Californians who have religious beliefs concerning the proper scope of marriage may exercise those rights as they see fit. Churches have always been able to proceed as they wish concerning marriage ceremonies. There was no mandate to suppress religious beliefs. This should be obvious to everyone in California because of our tolerance of all religions.
That the supporters of Proposition 8 were motivated by religious beliefs cannot be denied. Now the religious beliefs of some Californians are in our Constitution and, until overturned, govern us all whether we like it or not.
The other branch of the First Amendment is equally important. The state may not establish a religion. The state may not take principles of religious belief from a religion, any religion, and establish it as the law applicable to all. This line establishing the double branch of protection of religion on the one hand and no establishment on the other was arrived at after hundreds of years of turmoil.
Historically, marriage was used as a method of oppressing a despised group. These lessons of history are relevant to reflect on today. In Ireland, for 150 years, the penal laws provided that no Protestant could marry a Catholic.
Much more recent in the United States were the rules against marriage between a black person and a white person. These were struck down by the U.S. Supreme Court in the 1960s and the California Supreme Court in the 1940s. Using the civil marriage ceremony as a method of expressing governmental disdain toward a particular group is as old as the Sierra Nevada. It has been an assault on tolerance.
Finally, marriage is a fundamental right in constitutional analysis. There are very few things in life more important than the ability to choose one's partner. Marriage is not just a word; it is a status, a state of mind, a way of being. Look in any direction and you will see examples of the people's respect for the institution of marriage.
A large group of Californians has now been denied that fundamental institution. These folks are our neighbors, our friends, our colleagues and our relatives. The constitutional promise of this state is, as the California Supreme Court held, that they are equally protected in the enjoyment of rights by all Californians. But the voters have spoken.
Now it will be up to the courts to explain whether equality is real - or just an illusion. I would not wish to be the one to justify this vote to a gay woman going to Afghanistan in the military, to a gay police officer who risks everything so we may be safe or any of the other thousands of gays and lesbians in California who contribute so much to our culture, our advancement and our well being.
I cannot square this vote with my view that Californians are decent, accepting and tolerant. But I know that the gays and lesbians of California, like the oppressed Catholics of Ireland who lived under penal laws, will fight this visible, constitutional, embarrassing injustice until it is no more. And when that day comes, we will live in a better state.
James Brosnahan, author of the "Trial Handbook for California Lawyers," is a senior partner at the Morrison & Foerster law firm in San Francisco.
