Religion and the Trial of Proposition 8.

At Religion Dispatches, Candace Chellew-Hodge has a review of the first week of the Proposition 8 trial taking place in California and asks, where's the religion?

As we've seen with abortion, aid in dying, and gay rights, religious advocates have used their "pro-life" resources to shape legislation - because God has pull with politicians - but they've worked hard to avoid the Establishment clause issues of claiming religious grounds in the courts, understandably. US courts still struggle with how to interpret separation of church and state, the Supreme Court notoriously avoiding it at all costs particularly on issues of patients' rights and of issuing unpredictable decisions regarding religion in the classroom and the public square.

But the interesting thing this case over Prop 8 is showing is that when claims for "traditional" laws are made without God's backing, they tend to fall flat. Procreation? Parenting? The state should have an interest in protecting marriage on these grounds? The reasons lack legal significance.

If supporters of Proposition 8 were to pull out the Establishment clause, they would have to give up the God ghost that propelled this horrid, draconian law into passage. Saying the forces behind the bill's passage were pushing religious ideology and having it struck down in a court of law as violating separation of church and state would put a giant kink in the work religious opponents of same-sex marriage are doing all across the country.

It's a hell of a lot easier to scare voters and intimidate legislators with discriminatory fear of creepy gay couples, but the third branch of government exists to interpret the constitution, outside of public opinion and away from influence of the legislative branch. On the Establishment clause, judges have often caved to societal pressure and their own convictions. Let's hope the Prop 8 judge sees how little basis there is in the law when religious ideology is extracted from arguments.

If you read some of the testimony Chellew-Hodge includes in the article, the arguments sound even quaint, like the transcripts of a case from the last century, rife with unchecked discrimination and fear of change:

When Proposition 8 was fought at the ballot box in California to deny the newly-minted right to marry for gay and lesbian couples, those leading the charge were mainly religious. The Mormon Church gave more than $180,000 in efforts to repeal the new marriage law. That was peanuts though compared to the nearly $730,000 in cash and services provided by Colorado-based Focus on the Family and the $1.275 million given by the Catholic Church group the Knights of Columbus.

The religious argument against marriage equality for gays and lesbians may have won the round at the ballot box, but in the San Francisco courtroom where the legal battle to overturn Prop. 8 wraps up its first week, religion has been largely absent. Religious arguments don’t hold a lot of legal water, so anti-marriage equality proponents are forced to use their secular arguments, and reading reports from the courtroom (since the U.S. Supreme Court nixed video coverage of the trial), they’re leaking fairly badly as well.

Without being able to argue that God ordained one man and one woman for life (never mind all that Old Testament polygamy) and so we cannot deviate from that pattern, those opposed to same-gender marriage are instead focusing on issues like parenting, economic impact, discrimination, and child rearing.

In their opening arguments, defense attorneys laid out their case:

Charles Cooper, the lead attorney for the Proposition 8 defense (…) is hitting the main points in the defense: that the voters have spoken on the issue, and gay couples in California enjoy strong legal protections under domestic partnership laws. (…) Cooper finished his opening statement, defending the need for society to preserve the traditional definition of marriage and limit it to heterosexual couples for its procreative purposes. He told the judge that marriage must be “pro-child,” and that would be at risk if same-sex couples were allowed to marry. Cooper insisted that the courts should stay out of the issue and allow the voters to decide whether they want to allow same-sex marriage, but the judge questioned that thesis. “There are certainly lots of issues taken out of the body politic. Why isn't this one of them?” the judge asked at one point.

Throughout the week, the plaintiff’s lawyers have taken a whack at each of those issues, and more. Harvard University historian Nancy Cott was the first to dismiss the idea that marriage should be reserved for procreation.

Her task to start the second day of trial is to knock down one of the central arguments of gay marriage foes: that the state has a compelling interest in restricting marriage to heterosexual couples because of the procreative purpose of marriage.

Asked by plaintiff’s attorney Theodore Boutrous whether procreation is a central purpose of marriage, Cott scoffed, nothing that President George Washington, “the father of our country,” was sterile by the time of a later marriage.

“Procreative ability has never been a qualification for marriage,” she testified.