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Wednesday, November 26, 2008

Prof. Stone, Prop. 8, and church-state separation

An item from the "debates not likely to be resolved anytime soon" file:  In this piece, Prof. Stone contends (among other things) that California's Proposition "was a highly successful effort of a particular religious group to conscript the power of the state to impose their religious beliefs on their fellow citizens, whether or not those citizens share those beliefs", and that "[t]his is a serious threat to a free society committed to the principle of separation of church and state." 

Now, Prof. Stone and I went back and forth on (pretty much) the same question, a year or two ago, in the context of the Supreme Court's decision upholding the ban on partial-birth abortion.  I wrote then that "it is not clear why the claim 'human fetuses are moral subjects and this fact constrains what should be done with and to them' is any more 'religious', or any less 'moral', than the claim 'all human beings are moral equals, regardless of race, and should be treated as such in law.'  What's more, even if it were true that the former claim is 'religious' (certainly, for many, it is religiously motivated or grounded), [it's enactment into law] does not violate . . . the 'separation of church and state' that our Constitution is thought to require."

And, here we are again . . . .   

There is much in Prof. Stone's piece with which I (and, I would think, most reflective religious believers) agree.  For example, we agree -- as it happens, I have good religious reasons for believing -- that, as Greg Kalscheur has put it, there are "moral limits on morals legislation"  We (and Pope Benedict XVI) also agree entirely regarding the importance of the principle of "separation of church and state", properly understood. 

To invoke this principle's importance though, and even to point to the fact that religious believers were much more likely to support Proposition 8 than were non-believers, does not, in my view, establish the point that Prop. 8 is (putting aside other questions about its merits) an effort to (in his words) "conscript the authority of the state to compel those who do not share their religious beliefs to act as if they do." 

As Stone himself writes, "[l]ike other citizens, [religious believers] are free in our society to support laws because they believe those laws serve legitimate ends, including such values as tradition, general conceptions of morality, and family stability."  How do we know that this is not what most of Prop. 8's supporters believe?  Stone insists that religious believers "are not free – not if they are to act as faithful American citizens – to impose their religious views on others", but again, it does not seem to follow from the fact that most of Prop. 8's supporters are religious believers, or even from the fact that their religious beliefs are consonant with Prop. 8, and motivate them to support Prop. 8, that they are trying to "impose their religious views on others."

Let's take it as given that, in a society like ours, citizens should not try to use the law to "impose their religious views on others."  How, exactly, do we decide (a) what counts as an "imposition", and (b) what counts as a distinctly "religious" view?  It seems to me that the question whether Prop. 8 is constitutional, or advisable, or deeply unjust, is not best answered by trying to pin down the nature ("religious" or "moral"?) of the beliefs it represents.

Posted by Rick Garnett on November 26, 2008 at 11:32 AM in Religion | Permalink


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Human beings are Loved by God, in fact, human beings were created for communion with God.
There is order in truth, as there is order in Love, which is why a man does not Love his wife in the same manner as he Loves his daughter, or his son, or his mother, or his father, or a friend. Love is ordered to the inherent personal and relational Dignity of the human person, who is not, in essence, an object of sexual desire/inclination, but a son, daughter, brother, sister, husband, wife, father, mother.

Posted by: N.D. | Jan 14, 2015 3:44:08 PM

Peter, I apologize if my responses seem dense - I'm not trying, I promise, to be difficult or coy -- but I don't think it is so clear that "once you sweep aside all views that are held *because of the person's religious beliefs*, there are there still rational arguments left that would lead people - both religious and non-religious - to want to raise the minimum wage or outlaw employment discrimination." At the end of the day, at least in this country, *so many* policy arguments depend on claims about "fairness", "equality", "liberty", and "dignity". What makes an argument that merely *asserts* "X policy is required because human beings are equal in dignity and worth" a "rational" argument, as opposed to a "religious" argument? Merely the absence of a citation to a "religious" text or authority? What if one suspects (as I do) that all arguments like this depend on in being the case that human beings are loved by God (and that, absent such love, there is nothing particularly "rational" about such arguments)?

Posted by: Rick Garnett | Dec 1, 2008 11:03:56 AM

D: I also "don't see it as undermining the separation of church and state to have voters using their own religious beliefs to guide their choices." Nor do I see that as a problem of less than constitutional proportions.

I guess you are saying that denying a legal right to a group based solely on religious belief is not the same as "imposing religious practice or belief." A little too fine a distinction for me. But historically I think you would be right. Hypothetically, denying public education or scholarships to girls because it would interfere with their traditional role in the family (as proclaimed in The Religion) would not be analyzed as "imposing a religious practice or belief." And if sex were not a "protected class," and such an amendment were passed, what would you say to people who voted for it based solely on their religious teachings?

There is wisdom in separating church and state - even if it can't always be recognized or avoided. It is the fanatics who will force their religion on others when they get the chance. It becomes a personal question. I think we should be vigilant - even call people unAmerican if necessary.

It is starting to look like the real divide in these discussions is in the view of gay people. Is an exclusion of gay people just a "thing" to be regulated like not allowing bars or commercial buildings in residential zoned neighborhoods? Is it just a general "decency" law like banning public nudity (which might be hard to justify on a non-religious basis too (have these been challenged by women under the 14th amendment?)? I think people who are OK with Prop 8 put the amendment into one of those categories. I think people who are not OK with it put it into a human rights category.
Me? I just say: If you really voted only based on religion, and you can't come up with any articulable harm that will come from gays marrying (I know, I know, the rub is a harm outside of violating your religion), then you support imposing your religion on others and, by extension, the principle that might = right. So write that in your personal constitution. Might = Right is probably not in your religion.

Posted by: Craig | Nov 29, 2008 8:35:50 PM

I think a large portion of this debate is due to the prevailing view nowadays that the so-called "harm principle" is the summum bonum. Nevermind that bans on gay marriage can be justified on those grounds-- social readings of the harm principle are usually attacked as "too attenuated."

The belief that the gay marriage bans were entirely or mostly justified by bigotry is a startling leap of mind-reading that should challenge the credulity of the most zealous religious.

I am making no claims about whether gay marriage is a good, bad, constitutional, or unconstitutional thing. But people have GOT to stop attributing mental states to their political opponents.

Posted by: AndyK | Nov 29, 2008 5:04:44 PM

D wrote that requiring everyone to wear a yarmulke or swear a belief in god would be an impermissible "imposition" of religion, but not a law "guided in large part by religious principles, [that] does not impose religious practice or belief on the whole." I think this helpfully locates the nub of the disagreement. Would a statute forbidding eating beef, in a heavily Hindu jurisdiction, be permissible, where no one had any other reason for the ban? The statute does not require everyone to treat cows as sacred. How about a statute forbidding marriages between people who are more than 40 years apart in age (that happens to be my religious belief)? I'm not making people perform a particular religious act, just preventing them from doing what offends my religious beliefs. I suspect that it's going to be very hard to distinguish between requiring others to perform religious acts, versus making them engage in conduct (or refrain from engaging in conduct) in a way that merely "reflects" my religious beliefs or "indirectly" gives expression to them. In the end the problem is rather like that of sex-discrimination versus sex-role discrimination -- the latter is less direct but no more permissible.

Posted by: lars | Nov 29, 2008 4:34:58 PM

To D -- I had thought that my first remark, concerning the need to pass the rational basis test, was already a sufficient answer to your Commie-threat hypo.

To Rick - the difference between "imposing one's religion" to raise the minimum wage or outlaw employment discrimation, on the one hand, and "imposing one's religion" to prohibit same-sex marriage, on the other, is already solved by my account of what it means to take a "distinctively religious" position. Namely, once you sweep aside all views that are held *because of the person's religious beliefs*, there are there still rational arguments left that would lead people - both religious and non-religious - to want to raise the minimum wage or outlaw employment discrimination. Perhaps there are also good arguments, both religious and nonreligious, against holding those views (I doubt it in the case of employment discrimination, but whatever). But in the case of same-sex marriage, the question is: what arguments, not adopted *because of the person's religious beliefs* (as I explained this concept earlier) are left? "Just because they don't like the idea" (the answer suggested by Dave on Nov. 27) clearly isn't an argument; at best it's a tautology.
I don't see what's so difficult about this way of framing it. To be sure, some people hold religious beliefs so deeply that they cannot easily separate their religious support from their non-religious support for some particular position, but in that case all that's being asked for -- and as I understand him, all that Craig is asking for -- is a clear articulation of the basis for holding this position. For example, if the reason is, "because marriage is for procreation, and that's not a religious belief," then at least hearers have the benefit of understanding the rationale, whether or not they agree about the assertedly nonreligious nature of the justification.

Posted by: peter | Nov 29, 2008 2:34:18 PM


I think the trouble I am having with your response is that it means to impose religious views on the whole. I would agree that it would be unconstitutional to, for example, pass a law requiring mandatory wearing of a yarmulka. That is imposing religious practice on the whole. Likewise, mandating that every person seeking a government job swear under penalty of perjury to a belief in God--that would be imposing religious belief on the whole.
However, I see nothing wrong with a law that, while guided in large part by religious principles, does not impose religious practice or belief on the whole. I don't see it as undermining the separation of church and state to have voters using their own religious beliefs to guide their choices.

Posted by: D | Nov 29, 2008 2:09:30 PM

You said:
"I wish proponents of gay marriage[allowing girls to go to school] could make their case in ways other than by simply condemning opponents [the Taliban] for, in effect, having a religion that informs their thinking."

Proponents aren't trying to limit other people's freedoms or participation in government supported institutions.

Posted by: anon | Nov 29, 2008 12:21:56 PM

As you now rephrase the question, it sounds more like a question about how to evaluate personal decisions than a question about how to evaluate laws in general. That may be the best we can do - which I think is expressed in Geoff Stone's appeal to Americanism and my appeal to personal reflection on principles. Let me turn your original question around on you. You suggested that the "question whether Prop. 8 is constitutional, or advisable, or deeply unjust, is not best answered by trying to pin down the nature . . . of the beliefs it represents." But you preceded that by affirming the principle that it is not OK to impose religious views on others. So really, *in the context of this discussion*, the only way that it is unconstitutional, inadvisable, or deeply unjust is if it is a straight expression of a religious belief (being imposed on others).
There seems to be agreement that we don't have a useful court rule to evaluate whether Prop. 8 is a religious imposition. But I do not believe that you can't answer the question for yourself without asking Geoff Stone. Like I said above, that may be the best we can do right now.
If you determine, personally, that you vote for many laws because of your religion, then you may need a personal rule. But I am quite confident that you could fill pages with meaningful distinctions between minimum wage laws, employment discrimination laws, and Prop 8. How would you draw a categorical line in the sand between these things? I admit it seems difficult; I find myself looking for a clear "rational basis" type support before I would consider voting for an exclusionary/discriminating law like this.

Posted by: Craig | Nov 29, 2008 11:42:30 AM

Perhaps Rick will respond to the discussion so far. It seems to me that one’s views about morality and the nature of the universe will likely inform one’s practical views in all sorts of predictable and unpredictable ways such that Peter’s attempt to distinguish religious and non-religious reasons will, in the end, fail.

One may oppose gay marriage for reasons of sexual morality; or out of fear for its contributing to the deterioration of marriage as a societal institution. Likely these kinds of reasons for opposing it are most often allied. I’m not sure how critical it is to distinguish between them. In regard to practices that don’t lead to material harm but which may affect society in unpredictable ways, some of which are likely to be problematic, what to legislate about and what to leave to private conscience is always going to be a delicate matter.

In some sense, opponents of gay marriage are doubtless seeking to impose religious views in advocating against it; the views of proponents are no less “religious” in the sense at issue—following from particular views of morals and metaphysics. I wish proponents of gay marriage could make their case in ways other than by simply condemning opponents for, in effect, having a religion that informs their thinking.

Posted by: Tom | Nov 29, 2008 10:32:09 AM

Craig, your latest comment returns the thread, I think, to the question that Geoff's piece prompted for me, namely, "what are 'religious' reasons, other than reasons that many religious people, but not many non-religious people, find persuasive"? I take it as given that it is not "OK to impose your religion on others"; what I don't know is, what *counts* as "imposing my religion on others"? I take it that many people believe that it is "imposing [one's] religion" to refuse marriage-type legal recognition to same-sex relationships or to regulate more closely than we now do elective abortions. But, I take it that few people believe it is "imposing [one's] religion" to support raising the minimum wage or outlawing employment discrimination. My question is, what's the difference? If one is a religious believer, and one wants to live in accord with Geoff Stone's understanding of what's "American", how does one know (without simply asking Geoff which ones *he* supports) which legislative measures one may safely support?

Posted by: Rick Garnett | Nov 29, 2008 10:09:31 AM


A principle is a fairly basic concept. After spouting off on this blog for a while, I finally went and read Dr. Stone's essay that prompted this post. The way I read it, he and I basically agree. The point is simple: It is a bad idea (and unconstitutional) for the majority to impose religious views on the whole. A law like Prop 8 will not likely be held unconstitutional -- despite the fact that the non-religious reasons to support it make about as much sense as your hypothetical about Communism. THEREFORE, Stone says it is unAmerican to impose your religious views through laws. I read his appeal to Americanism as a recognition that people can and will get away with Prop 8 . . . but shouldn't. That is similar to my point -- If your sole reason for supporting the law is religious, then at least admit that you accept the principle that it is OK to impose your religion on others. Once you accept that, then be prepared to have it done to you without complaint. That was the extent of the discussion. I wouldn't find your hypothetical any MORE acceptable, but this was not a discussion about any principle, constitutional or otherwise, about how to avoid idiotic and irrational laws in general.

Posted by: Craig | Nov 29, 2008 12:59:12 AM

So, for Peter/Craig:

If I read the tone of your comments correctly, it seems you oppose the idea of a person voting against gay marriage based on a sense of morality rooted in religious faith. However, if someone (irrationally) thought that gays marrying was the first step in a worldwide Communist plot to take over the USA, and voted against gay marriage on that basis, you would find that vote MORE acceptable than the other? After all, it is based on a non-religious basis, which seems to be your main complaint here.

Posted by: D | Nov 28, 2008 7:34:33 PM

The irrational animus arguments voiced in this thread don't seem to have any necessary relationship to religion. I've heard supporters of Prop 8 articulate a religious basis for their beliefs, but I've heard many more simply explain that they supported the Proposition because they didn't like the idea of gays getting married, with no overt invocation of religious principles.

So that means there's nothing intrinsically religious about the kind of irrational animus that undoubtedly lies at the core of resistance to gay marriage. This doesn't mean that organized religion didn't play a large role in the passage of the amendment, though. The LDS church poured money into California to support its passage. So in that sense, religion played a significant role in affecting the state of the law, and the lives of those affected by it. This isn't at all unusual though, at least insofar as wealthy, concentrated interest groups frequently leverage their influence to make the law favorable to them.

Posted by: Dave | Nov 27, 2008 6:49:33 PM

Is anyone aware of a "gay church" that requires people living together to be married? Wouldn't that be an interesting challenge?

Nice try at answering Rick's question Peter. The rest of us were talking to ourselves I fear. I suspect there is often enough overlap between views based on religion and views not based on religion to render the analysis impossible. To me, Prop 8 seems straightforward religious, but many intelligent people seem to disagree. And how could the test work on a population as opposed to just an individual? If the test can't work in this case I guess it might at least work when the Taliban arrive in your state and vote girls out of school?

Aaron and others have emphasized the obvious point that we can justify almost any law (though I believe there are fairly compelling reasons for picking a voting age and in prohibiting incest that I don't see in Prop 8 (more than "don't want" anyway)).

I just want people who voted for this because their church told them to to admit that they accept the principle that they should be allowed to force their religious views on others. Forget about whether you can invent secular reasons; forget about whether other laws have roots in religion. Just fess up. Now, if people see clear moral (or otherwise I guess) threats to themselves or their children from gay marriage, then religion be damned, this is like any other law. I just have not heard those voiced. Is this different than amending the constitution to forbid the combining of meat and milk? I wonder if Rick or others think that would cross the "moral limits on morals legislation?"

Posted by: Craig | Nov 26, 2008 11:22:28 PM

It's hard enough to identify "the framers' intent" or "the legislature's intent." To ask for "the intent of 10,000,000 people" is impossible.

Set aside the normative merits of Prof. Stone's approach. As a practical matter, it lacks manageable standards and invites unprincipled speculation.

Posted by: Law Student | Nov 26, 2008 11:11:24 PM

Very interesting post, Rick, with some interesting responses. I take it that Aaron Williams's post needs no particularly pointed response here, as it makes no room for challenges founded on a rational basis, and therefore fails to respond to the comments of Craig, whom it quotes.

As to your question (a), Rick, what counts as "imposition," I've no idea but doubt that the answer would be helpful. I assume your point is that one person's imposition is another person's cooperation or indifference, though perhaps I am missing your point.

As to your question (b), what counts as a distinctly religious view - it seems to me, at a first cut, that the right answer is, "a view that is held because of the person's religious beliefs," which is to say, a view that would not be held but for the person's religious beliefs. Thus a view that is held for a combination of reasons, including religious ones, isn't a "distinctly religious" view unless the person's position would change if we subtracted the religious justifications. That returns us to NotAgain's point, about the non-religious justifications in this instance. If the non-religious justifications were, by themselves, not persuasive in getting someone to take a particular view here, but adding a religious argument persuaded the person to take that view, then we would have a view that is "distinctly religious," because the religious ingredient was the part that operated to make the person embrace this view.

Posted by: Peter | Nov 26, 2008 9:40:09 PM

Craig, unless you're prepared to live in a state where, after every election, citizens are surveyed for their "motives" behind each law, you're tilting at windmills. (Of course, this will only work after the first election, after which point voters will simply game the system and provide secular reasons for their votes.) This would simply strain Establishment Clause jurisprudence to utter absurdity.

"The law appears to benefit no one and to protect no one."

Herein lies the fundamental underpinning of the debate. Democracy, by nature, lets citizens decide *for themselves* what they think benefits them. No single person, not even a law professor, gets to decide whether a voter's desire for protection is misplaced, or whether a voter will 'really' benefit from a particular law. Does anyone really "benefit from", or does anyone need "protection from" 17 year-olds voting? Or cousins marrying? If we are to believe in democracy we must say yes, *because the people have said they do.*

Fact is, some people don't want the state to marry cousins. Some don't want the state to marry people of the same sex. Some people think both. Some people think cucumbers taste better pickled. Welcome to the 'will of the people'.

Posted by: Aaron Williams | Nov 26, 2008 7:49:15 PM

The law appears to benefit no one and to protect no one. It only discriminates, as NotAgain says, without reason. The hypothetical non-religious reasons referred to by Rick are not taken seriously by anyone. Maybe there are other laws like this, but certainly most laws are not like this as dobe gulia suggests.

I am sincerely interested to hear how support for *this* law is not support for the principle that the majority should be able to impose its religious views on others.

Posted by: Craig | Nov 26, 2008 6:22:08 PM

How refreshing it must feel for those like Craig to find themselves living in the only period anywhere in all of human history where the obvious revelation has occurred that a marriage can include two people of the same sex. I hadn't realized that the Taliban had been in power throughout the planet from the dawn of time until 2003. If only we hadn't elected Taliban member Barack Obama, who opposes gay marriage, as our next President!

Posted by: Jay | Nov 26, 2008 6:17:28 PM

Once again, we hear that those denying basic civil rights to gay people have real reasons for doing so, rather than the irrational animus identified in Roemer v. Evans.

And once again we aren't given the reasons.

Can we please hear them? Is the problem that gay people are:

Bad role models?
Likelier to be cruel or mean?

An open-minded person is bound to conclude, as Judge Lederman in the Florida gay adoption case did, that

"[B]ased on the robust nature of the evidence available in
the field, this Court is satisfied that the issue is so far beyond
dispute that it would be irrational to hold otherwise; the best
interests of children are not preserved by prohibiting homosexual

The same can be said of marriage.

I wonder what Prof. Garnett tells his gay colleagues about their basic capacity for being married or raising children. Or perhaps his employer so passionately believes in the inferiority of gay people that he has no gay colleagues. If so, it's a great catch-22: "they're so bad, they can't even come into the institution [of marriage/of my pure Catholic university]"; kept out, they can never prove their worthiness to be included.

Posted by: NotAgain | Nov 26, 2008 5:37:36 PM

Rick, I'd take your position even further. We can attach some religious principle to almost every law and every social or economic policy. Does it mean they are now all suspect on the church-state separation grounds? Wealth redistribution programs have clear religious underpinnings -- check, all suspect. Laws resticting the use of violence against other human beings -- check, all suspect. Laws promoting community self-governance -- check. Laws protecting private property -- check. Law requiring us to compensate others for the harm we've caused -- check. All environmental laws, tax laws, family laws -- check, check, check, check, check!

Posted by: dobe gulia | Nov 26, 2008 5:15:30 PM

In your heart you know that this law was not passed in support of "general conceptions of morality, and family stability." It is possible, yes. You can argue it all you want, but no one believes it. There is nothing rational to protect -- no victim.
In the end, it is a Taliban law, but one that *will* stand up to all constitutional scrutiny.
Those who support it simply need to recognize that they are OK with the principle that citizens can and should use the law to 'impose their religious views on other.'"
This argument should not be compared with religious arguments about abortion. If someone's moral view (from wherever it arises) is that abortion is murder, then they must oppose abortion. Regardless of whether your viewpoint originates wholly from religion, once you have that viewpoint, the fetus becomes a victim who must be protected. Gay marriage has no victim -- like I said above, you can argue it but no one believes it -- therefore, this law is a Taliban law.

Posted by: Craig | Nov 26, 2008 4:11:50 PM

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