Back in 2010, I wrote a piece about California Proposition 8 which banned gay marriage. It was challenged in court, and eventually struck down on Constitutional grounds. Since then, many states have passed laws legalizing gay marriage, but the religiously motivated opposition has never given up, and now with a Republican Congress and White House, they are hoping to revisit the issue.[i]
There are two facets to the gay marriage controversy. First, the legalization of same-sex marriage, and second, the anti-discrimination laws that prohibit businesses from withholding services to married gay couples (or even gay individuals) on religious grounds. The Religious Right has long contended that this violates their “religious rights.” This is part of a larger issue: Do religious rights include the right to violate the civil rights of people they disapprove of by discriminating against them? Some states have passed “religious rights” laws allowing pharmacy workers, for instance, to refuse to fill prescriptions for contraceptives.
Many red herring issues have been dragged across the legal path to treating gays as real people. The opponents of gay marriage claimed that churches would be required to perform same-sex marriages. That false claim was spread widely in California, using millions of dollars from the Mormon Church and other Religious Right groups. A lot of people who should have known better were taken in by that. Today, Proposition 8 would lose in California by a large…maybe even a YUUGE margin.
Here is the piece I wrote in 2010 when Proposition 8 was struck down in California.
California Proposition 8 and Church-State Separation
As a longtime member of Americans United for Separation of Church and State, I was appalled when Proposition 8 passed in 2008, banning same sex marriages in California. The Religious Right had poured money into the campaign, much of it from outside California, and spread distortions and outright lies in their campaign literature. Many voters were duped by the scare tactics, and the measure passed by a narrow margin. Since then, the massive funding by the Mormon Church and other religious groups has been revealed, despite their efforts to conceal it, and recent polls suggest that if the measure were put before the voters today, it would fail.
Opponents of Prop 8 went to work immediately on a legal challenge. There are Constitutional issues regarding equal protection under the law. Eventually it ended up in court, and you have probably read about the recent decision by U.S. District Judge Vaughn Walker. It was a victory for same-sex marriage proponents, even though it will be appealed by the losers. It was also a victory for those of us who support separation of church and state.
Judge Walker’s careful and considered opinion makes this clear. He gave an excellent tutorial on why the debate over marriage rights for same-sex couples is as much about church-state separation as it is about equality for all Americans.
In his decision striking down Proposition 8, California’s constitutional ban on gay marriage, he explained that our laws, including those governing marriage, cannot be based solely on private moral or religious beliefs. They must also have a secular purpose.
Proposition 8, Judge Walker found, was based on a private moral viewpoint and had no legitimate governmental interest, let alone a compelling one. In Perry v. Schwarzenegger, Judge Walker made it clear that in the United States, marriage is a civil matter. Whether the state recognizes same-sex marriage in no way affects a religious group’s right to perform only the marriages it sees fit. At the same time, religious groups, no matter how large and well-funded, cannot use government to enforce their marriage doctrines, making some Americans second-class citizens in the process.
“Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage,” Judge Walker wrote. “Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.”
Legal scholars who have read Judge Walker’s lengthy ruling have commented that his carefully constructed logic will make it especially difficult to mount a successful appeal.
The war is not over yet, but the outcome of the first battle is an encouraging sign.
Indeed, the war was not over. The decision by Judge Walker was stayed pending an appeal. But in 2012, the 9th Circuit Court of Appeals upheld his ruling. That decision was also stayed pending appeal to the Supreme Court. The legal machinations continued until finally in 2015 the Supreme Court ruled that the supporters of Proposition 8 did not have legal standing to appeal, and Judge Walker’s decision was allowed to stand.[ii] Finally, after seven years of obstructionist legal maneuvering, gay marriage was once again legal in California.
That did not stop the self-righteous from continuing the fight. They deplored the judges and courts who opposed them. It is not surprising that most of them voted for the current occupant of the White House who is a frequent critic of courts and judges who have opposed his actions.
If gay marriage is revisited by the Supreme Court, the decision will once again come down to Justice Kennedy, who has historically supported gay rights. But he is 80 years old, and will probably retire soon. If Trump can pack the Court with another reactionary like Gorsuch, we may see a return to prohibition of gay marriage in many states…and legalized anti-gay discrimination by businesses and individuals on religious grounds.
Despite the Founders efforts to establish a secular government, our early history had many examples of religious persecution. We were certainly not the worst nation in the world in that respect, but that should give us no cause for pride. Let us hope that the right wing government that is currently running the country and packing the courts with reactionaries does not reverse the progress we have made, and take us back to the bad old days.
Faith-based self-righteousness is inherently intolerant, and history has shown that intolerance will lead to persecution of minorities if government does not protect them. The founders of our nation knew that. The Bill of Rights was enacted specifically to prevent what Alexis de Tocqueville called “The Tyranny of the Majority.” But merely having the words in the Constitution is not enough. There must be a determined and vigilant effort to enforce them.
At the moment, that vigilance is being undermined, and the right of every citizen to “life, liberty and the pursuit of happiness” is at risk.