SF Chronicle, November 9, 2008
Church and state: The issue of Prop.
8
By James Brosnahan
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.