How can a free society reconcile the often competing values of democracy, religious liberty and the separation of church and state? This challenge was vividly illustrated by the recent controversy over California's Proposition 8, which forbade same-sex marriage.
In a democracy, the majority of citizens ordinarily may enact whatever laws they want. Some laws, however, are prohibited by the Constitution. For example, the majority of citizens may want a law denying African-Americans the right to vote or prohibiting Muslims from attending public schools, but such laws violate the Constitution.
Does Proposition 8 violate the Constitution? There are several arguments one might make for this position. One might argue that Proposition 8 discriminates against gays and lesbians in violation of the Equal Protection Clause. One might argue that Proposition 8 unconstitutionally limits the fundamental right to marry. One might argue that Proposition 8 violates the separation of church and state. It is this last argument that interests me.
Laws that violate the separation of church and state usually take one of two forms. Either they discriminate against certain religions ("Jews may not serve as jurors"), or they endorse particular religions ("school children must recite the Lord's Prayer"). Proposition 8 does not violate the principle of separation of church and state in either of these ways. It neither restricts religious freedom nor endorses religious expression.
What it does do, however, is to enact into law a particular religious belief. Indeed, despite invocations of tradition, morality and family values, it seems clear that the only honest explanation for Proposition 8 is religion. This is obvious not only from the extraordinary efforts undertaken by some religious groups to promote Proposition 8, but also from the very striking voting patterns revealed in the exit polls.
Proposition 8 was enacted by a vote of 52% to 48%. Those identifying themselves as Evangelicals, however, supported Proposition 8 by a margin of 81% to 19%, and those who say they attend church services weekly supported Proposition 8 by a vote of 84% to 16%. Non-Christians, by the way, opposed Proposition 8 by a margin 85% to 15% and those who do not attend church regularly opposed Proposition 8 by a vote of 83% to 17%.
What this tells us, quite strikingly, is that Proposition 8 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. This is a serious threat to a free society committed to the principle of separation of church and state.
The Framers of the American Constitution knew that throughout human history religious self-righteousness has caused intolerance, discrimination and injustice. They understood that religious self-righteousness is dangerous, divisive and destructive, and that it has led to untold ignorance and misery. It was for that reason that they embedded in our Constitution a fundamental commitment to the separation of church and state.
The Framers were not anti-religion. They understood that religion could help to nurture the public morality necessary to a self-governing society. But religion was to be fundamentally private. It was for the individual. It was not to intrude unduly into the political sphere.
But here's the rub: From a strictly legal perspective, it is next to impossible for courts to enforce the separation of church and state in the context of laws like Proposition 8. When a law does not directly restrict religious activity or expressly endorse religious expression, it is exceedingly difficult for courts to sort out the "real" motivations behind the law. As a consequence, courts are loath to invalidate laws on the ground that they enact a particular religious faith.
This does not end the inquiry, however. Courts also have difficulty in dealing with laws that do not expressly discriminate on the basis of race or religion or gender, but that were motivated by racial, religious or gender prejudice. But we know - as an essential part of our national character - that we as citizens should not support laws because they advance our discriminatory biases about race, religion, and gender. We know that it is un-American for us to enact laws because they implement our prejudices. We know that it is our responsibility to be tolerant, self-critical and introspective about our own values and beliefs and to strive to achieve our highest national aspirations.
The separation of church and state is one of those aspirations. Indeed, regardless of whether courts can intervene in this context, it is as un-American to violate the separation of church and state by using the power of the state to impose our religious beliefs on others as it is to use the power of the state to impose our discriminatory views of race, religion or gender on others.
This is the fundamental point that the religious advocates of Proposition 8 fail to comprehend. Like other citizens, they 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. But they are not free - not if they are to act as faithful American citizens - to impose their religious views on others. That is, quite simply, un-American.
This is not to say that individuals cannot attempt to persuade others freely to embrace and to act in accord with their religious beliefs. The First Amendment gives us virtually absolute protection to preach, proselytize and evangelize. But the fundamental point about religious liberty in the United States is that it is private. Christian Evangelicals have every right to try to persuade others to accept and abide by their beliefs. But they have no right - indeed, they violate the very spirit of the American Constitution - when they attempt to conscript the authority of the state to compel those who do not share their religious beliefs to act as if they do.