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.

Civil Marriage: Preparing for the Overturn of Prop 8.

From Howard Friedman at Religion Clause, news that opponents of Prop 8 have introduced legislation (a spoonful of sugar) to help the overturn of Prop 8 (the medicine) go down.

As the federal court trial challenging the constitutionality of California's gay marriage ban continues (New York Times1/27), proponents of same-sex marriage yesterday introduced a bill in the California legislature to make the prospect more appealing to opponents. The Civil Marriage Religious Freedom Act (SB 906) emphasizes the distinction between religious and civil marriage by changing language in state statutes relating to marriage to refer to "civil marriage." The bill goes on to add to the section which permits clergy to perform marriage ceremonies:

No person authorized by this subdivision shall be required to solemnize a marriage that is contrary to the tenets of his or her faith. Any refusal to solemnize a marriage under this subdivision shall not affect the tax exempt status of any entity.

According to LAist yesterday, both Equality California (press release) and the California Council of Churches back the measure.

Religion and Proposition 8.

As testimony continues in the Proposition 8 case in California, opponents of the law which makes same-sex marriage legal, are working to show that religious opposition was the primary force behind the law's passage, therefor violating separation of church and state.

Rather than accept that their position is discriminatory and a violation of individual rights, religious groups are claiming persecution for their beliefs. But no one is discussing what those religious beliefs have caused: imposition of religious ideology on state and federal laws, a blatant use of state law to enforce discrimination based on sexuality.

Attempting to end religious laws is not persecution, it's an effort to uphold religious tolerance.

From the LA Times:

The experts agreed under questioning that some churches have contributed to discrimination against gays and that religion also has been used to justify discrimination against African Americans and women.

David Boies, a lawyer for the challengers who questioned the experts, ended the video presentation with a question about whether some state laws were based on religion.

"No," said Katherine Young, a religious studies professor at McGill University, "because you have the doctrine of separation of church and state."

Documents unveiled later revealed the Catholic and Mormon churches played a major role in passing Proposition 8.

An e-mail from the executive director of the U.S. Conference of Catholic Bishops to the bishops and a cardinal said Catholics were crucial in providing money and volunteers to qualify Proposition 8 for the ballot.

The e-mail also praised the Mormon Church, saying it had provided "financial, organizational and management contributions" for the measure.

A memo by a Mormon Church public affairs officer said the Proposition 8 campaign was "entirely under priesthood direction," and the minutes of a Mormon Church meeting said members should not take the lead in promoting Proposition 8 but should work through Protectmarriage.com.

The church document said a teleconference had been held in Salt Lake City with 159 of 161 Mormon leaders in California. The leaders were told to encourage members to contribute $30 each for Proposition 8, toward a projected goal of $5 million, in addition to general fundraising.

Andy Pugno, a lawyer for the Proposition 8 campaign, said in an interview that it was "astonishing" that the court allowed into evidence internal communications of churches.

"Today has been a major expression of religious bigotry," Pugno said of Wednesday's testimony. "The gloves have clearly come off, and religious voters are in the cross-hairs."

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.