Proposition 8: How Many Souls Have You Saved?

Ashby Jones at the Wall Street Journal's "Law Blog" quips that while little should be happening in the Proposition 8 case in California at the moment - the trial has ended, the post-trial brief isn't due until the end of the month - there's still a lot happening in the case.

Not only have supporters of the law gone bonkers over reports that the judge is gay (perhaps threatening any public support gains the case could have made 'cause, you know, those gays stick together) but the Alliance Defense Fund is now screaming that supporters of "traditional" marriage are being discriminated against for their religion:

One of the lawyers handling the case for the defendants (that is, defending the constitutionality of Prop. 8) sent us a note recently attacking the plaintiffs’ approach in the case. Specifically, Brian Raum, the head of marriage litigation for the Alliance Defense Fund, has accused the plaintiffs and their lead lawyers, David Boies and Ted Olson, of unfairly attacking religion.

In an email, Raum wrote to us:

As one of the attorneys defending California’s marriage amendment, I’ve been uniquely privileged to be at trial in federal court over [recent] weeks. As the proceedings unfolded, though, something became perfectly clear that can only be described as outrageous. This lawsuit challenges the constitutionality of the voter-enacted state amendment protecting marriage. But the plaintiffs, who want to redefine marriage, have focused unabashedly on a systematic attack of orthodox religious beliefs.

The defenders of Prop 8 have been standing on two feeble legs, really: they claim that the vote to define marriage as only between a man and a woman was a democratic process; and that the state has an interest in protecting "traditional" marriage. While the first premise may be true, huge amounts of church money (protected from disclosure by the government's lobbying laws and tax-exempt status for churches) ensured that the proposition passed by 52%. That "traditional" ideas of marriage are defensible has proven a more difficult case to make. Everything from the need for procreation to arguments that homosexuals are not monogamous has been thrown up as justification for a "defense" of heterosexual marriage.

What the defendants tried hard to stay away from during the trial were overtly religious arguments for same sex marriage, fearing that the Establishment Clause could be called on to disprove their arguments. Same sex marriage, they claimed, is a moral wrong, not a religious one.

Yet the overtly Christian Alliance Defense Fund was started in 1994 by the likes of Campus Crusade's Bill Bright and Focus on the Family's James Dobson in order to inhibit the legal rights of non-Fundamentalist Christians. They've made an art out of claiming that individual rights are "religious opression," even if those rights in no way impact the lives of others.

As the cornerstone of what I call the Legal Right (similar in purpose to the Religious Right and the Medical Right), ADF is a well-funded, savvy, highly effective force in law today. Their founding principle, that religious freedom is defined as tolerance by society of their particular religious proselytizing, is neither sweet nor benign.

When you define religious freedom as a one-sided demand that all others tolerate your proselytizing (because your faith is right and others need to be converted), any resistant non-believer becomes opposition to your goal of saving souls. Theologically, fundamentalism is designed to measure a believer's chances at heavenly afterlife by how he's lived (though a little deathbed salvation can fix that) and how many he has converted. It's this work to convert - to "reform" the gay, to make chaste the whore, to assert God's laws on society - that ADF is after.

From abstinence education to school prayer, from ahistorical text books to ten commandments statues in court houses, the primary goal is to teach the word of God - a very specific God - and to win all of society into that faith. Religious freedom, in this frame, doesn't mean freedom to believe as one's conscience dictates - no Christian then would need the ten commandments in a courthouse or to be kept from condoms - but freedom to spread that view either by conversion or imposition of laws unchecked.

It is the intolerance demonstrated by religious forces and their desire to convert and govern that Proposition 8 most highlights, not a greater need for tolerance of religion.