Monday, November 24, 2008

Prop. 8: An Unconstitutional Injection of Anti-Gay Religious Dogma Into State Law

Conservative Churches Crossed the Line by Campaigning For Measure Banning Same-Gender Marriages, Effectively Enshrining Their Religious Doctrines Against Homosexuality Into the California Constitution in Violation of the Federal Constitutional Separation of Church and State -- and in Defiance of Two Recent U.S. Supreme Court Rulings

Conservative churches that oppose homosexuality on religious grounds, including the Mormon Church (whose landmark Salt Lake City temple is pictured above) campaigned heavily in favor of California's Proposition 8, a measure banning gay and lesbian couples from getting married. The measure passed on November 4 with 52 percent of the vote. But by involving themselves so boldly in seeking to have their anti-gay religious doctrine -- which is not universally accepted by all religious institutions -- made the law of the state, these conservative churches have crossed the constitutional line separating religion and government. (Photo courtesy Salt Lake City Deseret News)

(Posted 5:00 a.m. EST Monday, November 24, 2008)

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Due to the Thanksgiving holiday, there will be no Thursday edition of The 'Skeeter Bites Report on November 27. The next regularly-scheduled edition will be published on Monday, December 1. Happy Thanksgiving!

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It's been three weeks since the November 4 election, and by now, except for two hotly-contested Senate races in Minnesota (recount) and in Georgia (runoff), the votes have been tallied and the people have spoken.

Unless you happen to live in California.

There is one campaign in the Golden State that is far from over, even though the votes have been counted and the outcome is clear. Quite the contrary, this particular campaign has become much more emotionally explosive -- and has expanded far beyond California's borders, not only in the political arena, but also in the legal arena. 

That campaign is over same-gender marriage.

More specifically, the battle is over Proposition 8, an amendment to the California state constitution that defines marriage as only between a man and a woman -- barring gay and lesbian couples from marrying. After a heated pre-election campaign, Prop. 8 was approved by 52 percent of California's voters on November 4.

What? Same-gender marriage defeated -- in California?

After all, California is the most populous state in the Union, long regarded as the nation's social trend-setter, home to the largest and most politically influential gay communities in the nation.

This is the state that did away with a racist law barring interracial marriages in 1948 -- almost two decades before the U.S. Supreme Court struck down similar laws nationwide.

This is the state that gave birth to the environmentalist movement in 1969 -- a year before the first Earth Day -- after a disastrous oil spill off Santa Barbara. Some of the largest and most influential environmental groups, from the Sierra Club to Greenpeace, are headquartered there.

This is the state that has long been -- and remains -- on the cutting edge of popular culture, home of the motion-picture, television and music industries.


But this is also the state that, more than any other, is a magnified microcosm of the nation as a whole. It is the one place in America in which the nation's political and social divisions are at their most stark and raw.

In California, liberals are much farther to the left than their peers in the rest of the country -- and likewise, conservatives are much farther to the right. Given the state's reputation as being on the cutting edge of popular culture, California is also the epicenter of the culture wars between liberals and conservatives.

Having lived in California throughout the 1980s and the first half of the 1990s, this blogger can attest to the fact that there are social fault lines in the Golden State that are just as volatile as the geological fault lines that trigger its notorious earthquakes.

This is the state where passions on hot-button social issues such as abortion and gay rights run deep and where neither side will surrender to the other, no matter how many times the voters there have spoken. Even in San Francisco, the unofficial gay capital of America where, not surprisingly, Prop. 8 was resoundingly trounced, there were nonetheless conservative pockets of the city where Prop. 8 won.

So it should come as no surprise to anyone that instead of settling the issue of same-gender marriage in California, the passage of Prop. 8 has done the exact opposite:  It has opened up a hornet's nest of passion by gays and their supporters -- as well as their opponents -- not only in California, but across the nation.

No matter which way the California Supreme Court rules on Prop. 8's constitutionality -- which came under legal attack immediately after its passage -- the issue is all but certain to be settled in Washington, D.C., not in California.

And even then, the losing side will not accept defeat. Just ask opponents of abortion, who for more than 35 years have been waging a jihad to overturn the U.S. Supreme Court's Roe v. Wade decision affirming women's constitutional right to reproductive freedom.


Many of those same opponents are also waging a jihad to deny gay and lesbian couples the constitutionally-guaranteed right to marry -- a right the U.S. Supreme Court firmly established in its landmark 1967 ruling, Loving v. Virginia, in which the justices unanimously struck down laws barring interracial marriages as a violation of the Equal Protection Clause of the Fourteenth Amendment.

The high court may very well have paved the way for gay and lesbian couples to legally marry in 2003, when the justices struck down, in Lawrence v. Texas, the last 13 remaining state anti-sodomy laws.

That 6-3 decision, written by moderate conservative Justice Anthony Kennedy, declared that laws barring a certain sexual act that is often engaged in by gay men also violated the Equal Protection Clause of the Fourteenth Amendment when applied against consenting adults in the privacy of their homes. In a number of states, those laws were enforced exclusively against gay men and not against heterosexuals engaging in the same act.

Although the court did not specifically address same-gender marriage in its ruling, the practical effect of the Lawrence decision was to fully legalize same-gender relationships and to remove the last legal justification to bar same-gender couples from marrying -- casting serious doubt on the constitutionality of the federal Defense of Marriage Act of 1996 and all similar state laws, according to the bitter dissent of hard-line conservative Justice Antonin Scalia.

"State laws against . . . same-sex marriage . . . [are] called into question by today's decision," Scalia wrote. "The Court makes no effort to cabin the scope of its decision to exclude them from its holding."

Combined with Romer v. Evans, the high court's landmark -- yet almost forgotten -- decision in 1996 that states cannot deliberately single out gays and lesbians for exclusion from the constitutionally protected rights and privileges enjoyed by all other Americans, it's very likely -- indeed, it's a virtual certainty -- that legal challenges to Prop. 8 will go all the way to the nation's highest court.

In the Romer case, which was also decided by a 6-3 majority, the justices struck down a voter-approved amendment to the Colorado Constitution that overturned state and local laws that barred discrimination against gays and lesbians. The measure, known as Amendment 2, also barred the Colorado Legislature and all municipal and county governments in the state from enacting any new laws to prohibit anti-gay discrimination.

The Supreme Court majority, in an opinion also written by Kennedy, declared Colorado's Amendment 2 a violation of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution by explicitly singling out gays and lesbians for exclusion from laws protecting them from discrimination in employment, housing and public accommodations.

And by barring the passage of similar laws in the future, Amendment 2, the justices ruled, unconstitutionally deprived gay and lesbian Coloradoans of their First Amendment right to petition their state and local governments for redress of grievances.


One major criticism that this blogger has long had with gay-rights advocates in their campaign to legalize same-gender marriage is that they have sought to make this an issue that is not recognized in federal civil rights law: discrimination on the basis on sexual orientation.

What they should have done instead is raise this as an issue of discrimination based on gender, which is illegal under existing federal and state law. By restricting marriage to only a man and a woman, these laws illegally impose gender-based discrimination, allowing opposite-gender couples to marry, but not same-gender couples.

They should also have argued that in the aftermath of the Supreme Court's 2003 ruling in Lawrence, there is no longer any legal justification to bar gay and lesbian couples from marrying, since the court fully legalized same-gender relationships and that laws barring same-gender marriage are inextricably tied to an anti-gay religious doctrine.


There's little doubt that, based on past Supreme Court precedents in Loving, in Romer and in Lawrence, the constitutionality of Prop. 8 under the Equal Protection Clause of the Fourteenth Amendment is highly suspect.

A far more serious constitutional issue, however, is an apparent breach of the First Amendment separation of church and state caused by the major financial and logistical support worth millions of dollars for the Yes on 8 campaign by conservative churches both inside and outside California.

It turns out that the Yes on 8 campaign was heavily bankrolled by a number of conservative churches, most notably the Utah-based Church of Jesus Christ of Latter-Day Saints -- better known as the Mormon Church -- and Reverend Rick Warren's southern California-based Saddleback Church, which made headlines in August as the venue of a forum on faith and politics in which then-candidates John McCain and Barack Obama participated.

Contrary to the long-held assertions of religious conservatives, the civil institution of marriage -- which is what we're really talking about here -- is not "a holy gift from God." They have confused the state institution of civil marriage with the religious sacrament of holy matrimony.

It is the sacrament of holy matrimony, the exclusive province of religion, that is the "holy gift from God," completely separate from civil marriage, the exclusive province of the state.

Conservative religious institutions that oppose homosexuality have every right under the First Amendment to deny the sacrament of holy matrimony to gay and lesbian couples in accordance with their religious doctrine. But they have no constitutional right to seek to have the state deny civil marriage to gay and lesbian couples; it is clearly not their place to do so.

Nor do all religious institutions condemn homosexuality. To the contrary, many other religious institutions are openly supportive of gay men and lesbians -- with some even according the sacrament of "holy union" to gay and lesbian couples.


The states themselves are chiefly to blame for creating this confusion when they began authorizing members of the clergy to legally marry couples -- an authority that, in this blogger's opinion, they never should have given.

When my wife and I got married last year, we had separate religious and civil ceremonies. As we are practicing Wiccans, we had a Wiccan handfasting ceremony in May and our civil wedding in July. We purposefully chose to have separate ceremonies to make it clear to our friends and family that civil marriage and holy matrimony were -- and are -- two separate entities.

Had the states fully complied with the First Amendment separation of church and state, all couples would have separate religious and civil wedding ceremonies and we probably would not be going through this mess.

Religious conservatives have forgotten that the civil institution of marriage came about at the turn of the 19th century in response to the widespread practice of religious institutions denying the sacrament of holy matrimony to interfaith couples.

A Catholic husband, for example, would be refused the sacrament of holy matrimony by his church if his wife was not a Catholic. Even today, some ultra-Orthodox Jewish synagogues will not bless a couple in matrimony if one spouse is not Jewish. Likewise, some Muslim mosques will not bless a couple in matrimony if one spouse is not a Muslim.


Few Americans younger than 50 can remember a time when it was illegal for interracial couples to marry. Yet as recently as 1967, there were laws on the books in 16 states that barred "miscegenation" -- sexual relations, let alone marriages -- between people of different racial backgrounds, particularly between black men and white women.

Yet it was, ironically, a white man and a black woman -- Richard and Mildred Loving -- who challenged Virginia's anti-miscegenation law all the way to the Supreme Court, and won.

And did you know that Congress tried to pass a constitutional amendment banning interracial marriages nearly a century ago? The proposed Anti-Miscegenation Amendment of 1911 failed to muster the two-thirds majority in both houses of Congress required for passage, but it did set in motion the adoption of many state laws barring such unions.

The impetus: Massive controversy over the interracial marriages of Jack Johnson, the first African American heavyweight boxing champion. Defying racial taboos a half-century before the Lovings, Johnson never hid his affection for white women and married three times, each time to a white woman: Etta Duryea in 1910; Lucille Cameron a year later after Duryea committed suicide and Irene Pineau in 1925 after Cameron divorced him the previous year for infidelity.

This blogger is the son of interracial parents. My mother was African American and my father was Native American (specifically, Cherokee). Their marriage was illegal in my mother's home state of Louisiana -- until the Supreme Court struck those racist laws down.

Had I been born in Louisiana instead of New York in 1953, the state would have considered me an illegitimate child, a bastard. Imagine if President-elect Barack Obama -- the son of a black father from Kenya and a white mother from Kansas -- had been born in any of the 16 states that outlawed interracial unions instead of in Hawaii in 1961! That Obama opposes same-gender marriage, given his background, mystifies me.

But it also makes clear the role that religion is playing in the same-gender marriage debate.


By openly pouring millions of dollars and thousands of volunteers into the campaign in favor of Prop. 8, these conservative churches crossed a constitutional line they should not have crossed by directly seeking to impose their anti-gay religious doctrines on an institution that is the exclusive province of the state.

That this violates the constitutional wall of separation between church and state is so clearly transparent that those religious institutions who contributed to the Yes on 8 campaign could find themselves having put their tax-exempt status in jeopardy.

When religious doctrine clashes with constitutionally-protected rights, the Constitution must take precedence. It, after all, is the supreme law of this country.

Prop. 8 is a thinly-disguised attempt to enshrine an anti-gay religious doctrine into California's highest law. But in so doing, its supporters have violated the nation's highest law.

Prop. 8 -- and, for that matter, all 34 other state laws barring same-gender marriage as well as the federal Defense of Marriage Act of 1996 -- must be struck down as the unconstitutional breach of the First and Fourteenth Amendments of the U.S. Constitution that they are.

No matter what opponents of same-gender marriage say, this is an issue of constitutional rights that will be settled by the courts, not by public opinion, for the rights of all American citizens that are guaranteed by the U.S. Constitution are sacrosanct and cannot be taken away by the whims of a fickle populace.

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Volume III, Number 77
Copyright 2008, Skeeter Sanders. All rights reserved.


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Bot said...

The anti-Prop 8, pro gay marriage groups ran ads charging this whole idea that public schools will teach gay marriage is just a "lie."

The same groups now charging it’s a lie (public schools will teach about gay marriage whether parents like it or not) — were just in court in Massachusetts filing amicus briefs arguing parents don't have any right to opt their children out of the pro-gay marriage curriculum.

From the Anti-Defamation League (ADL) Amicus Curiae Brief:
“In the Commonwealth of Massachusetts, where the right of same-sex couples to marry is protected under the state constitution, it is particularly important to teach children about families with gay parents.” [p 5]

From the Human Rights Campaign Amicus Curiae Brief:
“There is no constitutional principle grounded in either the First Amendment’s free exercise clause or the right to direct the upbringing of one’s children, which requires defendants to either remove the books now in issue – or to treat them as suspect by imposing an opt-out system.” [pp1-2]

From the ACLU Amicus Curiae Brief:
“Specifically, the parents in this case do not have a constitutional right to override the professional pedagogical judgment of the school with respect to the inclusion within the curriculum of the age-appropriate children’s book…King and King.” [p 9]

Which side is really telling the truth here about its aims? I suspect the “Yes on 8” folks keep many more of the Ten Commandments (including “Bearing false witness”) than the “No on 8” side (some of whom subscribe to the “Ten Suggestions”).

Fitz said...

your misreading of Supreme Court case law on the subject of marriage: you are making the same mistake the New York Court points out in its recent decision. Discussing the Supreme Court precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942)

Judge Graffeo noted….

“To ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place.”2

Bob Hodgen said...

These churches that want to meddle in government should lose their tax exemptions and special status.

Anonymous said...

It's ironic that the Morons would support a proposition defining marriage as being between one man and one woman. After all, the Mormons feel discriminated against because they are not allow polygamous marriages between one man and dozens of underage girls.

Much as I detest the Mormons for their discriminatory stance on prop 8, I would have to say that "one man/one woman" is a religious holdover that should also go. In Islam it's one man and up to four wives. If Mormons had their way it would be one man and many wives.

Provided that marriage and divorce laws are modified accordingly, there is no reason why the state should not allow more complex marriages. It would still be bigamy to marry another spouse without the consent of existing spouses. Divorce and child care payments would be a complex minefield, but not an insoluble one.

Anonymous said...

"Which side is really telling the truth here about its aims? I suspect the “Yes on 8” folks keep many more of the Ten Commandments (including “Bearing false witness”) than the “No on 8” side (some of whom subscribe to the “Ten Suggestions”)."

Uhm - WHAT? Have you eaten any shellfish? Have you wore cotton with polyester? Then you too are breaking the rules.

You do know those rules were stolen from previous religions, right? Isn't stealing against the rules?

Your lies and hate make baby Jesus cry.