Bad Arguments

I have to say that I'm getting tired of this topic.  But since the issue is still a live one, we'll keep responding.  We received this question and I thought the answer I gave  might be useful to others who I suspect hear a similar argument about Prop. 8.

I had a discussion with a gay friend last week.  He expressed this opposition below, which is circulating in the web.  He stated that exit polls indicated that people voted yes because of religious reasons.  As this article states:

"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."

He also stated that friends and family that voted "yes" was a message to him - that we don't care enough about you (my gay friend) and your happiness.

Here is my answer:

First, I recommend this article of Greg's from the webpage about the role of religious convictions in voting.

Second, separation of church and state has nothing to do with individual citizens voting their personal views and consciences, whatever those are based on.  Every citizen uses the sum of his background, values, and beliefs to vote.  There is no requirement of democracy or a free society that requires any voter, including religious ones, to set aside any of their principles in making their vote.

All kinds of laws, in fact most laws, are based on morality.  Even if same-sex marriage were legalized, that would also be a moral view.  So there's no way to get morality out of this polity policy decision.  Every citizen, religious or not, is involving morality in their vote.  That's not a vice of religious people only.  It's not a vice at all.

I do think that in the public square, Christians should make arguments that appeal to all people not only those based on the Bible.  We cannot expect non-religious people to be persuaded by religious arguments.  But that doesn't mean Christians should not make up their own minds based on their religious views.

Separation of church and state simply and only limits government from making any confessional and doctrinal requirement of citizens in the form of a state church.  Separation of church and state is a limitation on the government, not individual citizens.  The Bill of Rights specifically, as a whole, is a limitation of the power of government to protect the individual liberties of citizens, so to try to conscript it to reverse it as a limitation on individual citizens is quite perverse.

Greg mentioned the issue of love in his commentary on the radio show Sunday so I would suggest listening to that.  This person should consider that love cares for the well-being and good, not just the happiness, of people.  The people who love him who voted against same-sex marriage have true concern for his well-being.  And they also have to have in view the well-being of society as a whole, which love would also require.  Demanding love to be on his terms is a very selfish viewpoint.  Love doesn't concede to demands that in the end might be harmful to the individual and society.

Comments

[T]

I wish I knew what "Gay" meant...

Is it simply people attracted to the same sex?

Or people actively having sexual relations with the same sex?

Of course in today's culture, if you are not having sex, you are a loser. Hence "sex = identity."

[Jason Dulle]

Melinda,

Well said! I have a question for you about your statement, “Separation of church and state simply and only limits government from making any confessional and doctrinal requirement of citizens in the form of a state church.”

This was the way I interpreted the 1st amendment as well until I heard the following grammatical argument for a broader interpretation:

The first amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

What is it that Congress cannot prohibit “the free exercise thereof”? “Thereof” modifies “an establishment of religion.” If we understand an establishment of religion to mean “a state religion, the amendment ceases to make sense. It would read, “Congress shall make no law establishing a state church, or prohibiting the free exercise of a state church.” Clearly that can’t be right. People do not freely exercise state churches.

The only way for the amendment to make sense is if “an establishment of religion” is broadly defined as religious practice, because only religious practices can be “exercised,” and only religious practices could possibly be the target of congressional injunction. If religious practices are in view in the free exercise clause, and the object of that clause modifies the establishment cause, then the first amendment does much more than merely prohibit the establishment of state churches. It also prohibits Congress from making any laws respecting religious matters. A better translation of the 1st Amendment may be, “Congress shall make no laws pertaining to religious matters, nor prohibit the practice of any religion.”

What do you think about this argument/interpretation?

[Sam]

Melinda, I'm sorry you have to keep making this same point over and over, but I'm glad you do it anyway. In fact, I wish you had a wider audience. This point NEEDS to be made over and over because the same argument keeps coming up over and over.

I remember several years ago on beliefnet talking about same-sex marriage on the unitarian universalist board. This fellow I was arguing with tried to get me to agree that religion should not play a factor in our vote. My response was to say that people should vote based on what they think is true and right regardless of how they came to those conclusions. The thing that matters when you vote is that you actually think some point of view corresponds to reality, and you should vote consistently with that. It makes no sense to say that a person who basis their morals on their religion should not vote, but a person who doesn't base their morals on anything should.

[Sam]

Jason, I think "thereof" modifies "religion," not "an establishment of religion." So it would read:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise of religion.

That makes sense to me.

[ernie]

Sam,
Your interpretation of the 1st amendment is exactly correct. "there of" only modifies the word religion.

I just finished 1st semester of Con Law and the establishment clause and free exercise clause were a large part of the class. that little mention of religion does so much with such few words... its the only time religion is even mentioned.

The establishment clause prohibits government from establishing a religion... what it is to establish a religion is much longer conversation... the courts have even had trouble explaining what it means.

[Jason Dulle]

Sam, I'm not so sure we can separate "establishment" from "religion." It stands as one thought/clause: establishment of religion. After all, it would not make any sense to say "Congress shall make no law respecting an establishment." The full direct object is "establishment of religion." So on what basis do we say "thereof" only modifies one word in that thought/clause?

Ernie, if the purpose of the amendment was only to prohibit Congress from creating a state church, why not say “Congress shall make no law establishing a religion,” rather than "no law respecting an establishment of religion"? By wording it the way it does, it seems to me the point is that Congress shall not make any laws regarding religion, period. Otherwise, the first amendment would not prohibit Congress from making laws governing ministerial wages in Baptist churches. After all, such legislation would not entail establishing a state church!

It seems clear to me that the purpose of the first amendment was to keep the government out of the religion business—not because they wanted to restrict religious freedom, but because they wanted it to flourish. As Greg has said, “Freedom of religion is the goal, and non-establishment is the means.” The first amendment ensured that political rights would be independent of religious belief, and everyone would have the right of conscience.

Of course, that doesn’t mean that people in government cannot be religious, or cannot have their vote influenced by their religious convictions. They can, and should.

[anon]

More generally, in a democracy why shouldn't the dominant religious group be able to enforce its views about behavior? Why shouldn't the majority be able to force everyone else to fall in line?

[David Blain]

Jason,

The first Amendment contains two clauses: the establishment clause and the free exercise clause. Each clause serves a purpose. The establishment clause is to prevent the Government from establishing a state/federal church and to prohibit any sort of forced participation or coercion of religion. The government is not allowed to enter the religious domain and pick one as the "government's religion"

The free exercise clause is to protect the people from the government in the people's practice of whichever religion they choose. The government is prohibited from punishing people for their religious practices unless they government can meet a very difficult burden showing the necessity to do so.

Additionally, there are 3 primary ways the courts interpret the two clauses: separation of church and state (government should not interfere with religion and religion should not interfere with government), strict neutrality (the government shall not endorse any religion through encouragement or discouragement) and the accommodations approach (the government is to allow religion into government because it is part of society so the government is just prohibited from coercing and establishing a religion.)

[David Blain]

Jason, (continued from above)

I agree that the 1st Amendment is designed to promote religious freedom, but that much is obvious. The debate is not about the purpose of the 1st Amendment but how the 1st amendment achieves that purpose. That is where the 3 views on interpretation come into play. The liberal justices adhere to the strict separationist view, whereas the conservative judges argue under the accomodationist view.

In order to preserve religious freedom, the founding fathers did not tie the governments hands behind their backs. The free exercise clause is not swallowed up by the establishment clause. The FE clause serves its own purpose which is to protect the religious practices of the lesser accepted religions. However, the government is allowed to regulate religious practices if they meet strict scrutiny or if the law is of general applicability.

Sorry, that was long and messy writing. Hope you understand what I am trying to convey.

PS
Thank God for the 1st Amendment because without it we could not even have this discussion

[Jason Dulle]

David,

I would agree with pretty much everything you said, but it doesn't address the points I raised about the grammar of the 1st amendment. It seems to me that the 1st amendment does more than merely prohibit Congress from establishing a State religion. It prohibits them from meddling in religious matters at all. If all they meant to say was that Congress cannot establish a state church, the more natural way to say it would be "Congress shall make no law establishing a religion," not "Congress shall make no law respecting an establishment of religion."

[David Blain]

Well, there is something else to consider here. The idea that the government must remain legislatively silent with regards to anything religious is just plain wrong.

If there is a religion that advocates the death of certain people then the government is allowed to legislate this kind of behavior. Anyway you justify the legislation, there is a direct (at least an indirect) effect on the freedom to exercise one's religion. Thus, the individuals 1st amendment right to freely exercise is infringed.

On top of that, if the government prohibits certain types of religious exercise then they are indirectly establishing a state religion. The clauses are inherently contradictory.

Now, you may disagree with what I just posted but you are disagreeing with the history of the supreme court since the 1st Amendment was written.

[Tim]

There seems to be one thing missing in the debate: the cultural context. The fact that some of the states had an official state religion is being ignored. Both Washington and Jefferson worked to have Virginia's state religion removed from it's position. Along with other issues, the power of the official denomination/religion to tax all citizens to support that denomination was a problem. Whatever various judges might think, the 'Original Intent' of the founders was that no official denomination would be established.
The whole notion of a 'Living Constitution' is pure liberal hog wash. Ask yourself these questions, give serious consideration before you do. Is the Constitution 'a grant of power' or 'a restriction to powers enumerated'? The question is contextual, but it will reveal how you view governments role.
The point is very well taken about governments role to protect individuals and society at large. There is no cedible evidence that the gay political agenda would be beneficial either to the individuals involved or to society.
When one bathes, a simple observation will determine what gender one is. If one is confused about something so basic and easily determined, what commends their argument to change the definition of marriage to us?
There is a difference between gay and homosexuality. Gay is a political agenda, homosexuality is based on gender identity confusion.

[Jason Dulle]

David,

Yes, I understand that the government can restrict certain religious behavior when they believe it is in society's best interest to do so (like outlawing peyote smoking by the native Americans, and polygamy among Mormons). But doing so does not indirectly establish a state church. And when the government demanded that Mormons stop polygamy, it was not because they were debating matters of Mormon theology. It was because they had deemed polygamy to be out-of-bounds for this country, and were enforcing that position on those who objected for religious reasons. In other words, it was a political action that affected someone's religious practices.

[David Blain]

Yes, but that does not answer the problem that it directly conflicts with the freedom to exercise one's religion. Regardless of the government's motive the prevention of polygamy or peyote smoking is an infringement of one's religion. In those cases though the government felt they had a strong enough purpose to justify the prevention. (And I would agree with the government's decision)

And when the government prevents certain types of religious exercises they are establishing some form of religion, even if so indirectly. By outlawing polygamy the government is saying that polygamous religions are not accepted religious practices in the US and thus have approved what kind of religions can be practiced or to what extent a certain religion can be practiced. By declaring which religious exercises are to be accepted and which are to be denied the government has taken affirmative steps in establishing a religion. They may not have established a formal religion such as Christianity or Judaism but they do affirm certain religious practices. Without religious practices you do not have a religion.