Saturday, November 28, 2009

Straw Man Question: By prohibiting Gay marriage aren't we violating the separation of church and state?

The Family Policy Institute of Washington has released a video entitled "By Prohibiting Gay Marriage Aren't We Violating the Separation of Church and State?"  and their Joseph Backholm answers the question:

The phrase “separation of church and state” does not appear anywhere in the United States or Washington State Constitutions. Regardless, the fact that people of a particular religious faith share common ideas does not mean that those ideas are necessarily unconstitutional because they are religious.

To the contrary, our laws against stealing, killing, lying, perjury, incest, rape, battery, and destruction of property were all religious tenets before they were laws. No one wants to repeal the criminal code because its major themes were first recorded in the Bible.

The idea that a preference for heterosexual marriage is unconstitutional simply because it is consistent with a religious doctrine is legally and constitutionally unsupportable.

Our Founding Fathers wanted to avoid a situation where a religious organization wrote the law for the country. However, they did not intend to create a country in which citizens and elected officials were forbidden from reading, discussing, thinking about, or legislating ideas that happened to be religious in nature

The problem is that he is completely missing the point.  He is correct in stating that prohibiting marriage equality does not violate the separation of church and state.   Like Joseph indicated in the video, the concept of a eparation between church and state was to prevent religious organizations writing the laws of the country. 

More after the jump

The constitutional principle that banning marriage equality does violate, is the 14th amendment--the "equal protection" clause.  That one says, in a nutshell, that all laws are to be applied equally to each person.  Civil unions aren't the answer because those create a 'separate but equal' status similar to the segregation and micegenation laws in Americas past.  I feel civil unions only work as a way to settle this if and only if all couples get a civil union when they file for a license and then are "married", "joined", or whatever by the faith they practice.  It would be two separate things--a civil marriage license, and a recognition by that couple's faith.  Religious organizations do not have to apply marriage to any couple they feel does not match their requirements or beliefs--interfaith, multiply-divorced, gay, etc.  And for civil purposes like determining tax status and benefits, only the civil license is recognized.

Where the "separation of Church and State" concept does come into play is in how a marriage equality (or marriage banning, unfortunately) law is enacted.  In Maine, California, New Jersey and other states, various religious organizations, especially the Catholic and Mormon Churches, are involving themselves in ways that directly influence the legislative process.  While I dislike churches preaching to their parishoners about the church's viewpoint on political issue X, I think that is within bounds.  I have no problem with a church issuing a position paper or expressing their opinion.  Private citizens who go to these churches are able to vote on the issue in accordance or in contradiction to the church position.  When churches start acting like private citizens--sending bishops to meet with legislators to insert specific language in a proposed bill, making donations in the name of the church to various political organizations, etc--they are crossing the line and becoming a political action committee.  Once that happens, they have violated the separation principle and should be treated like a PAC, including revocation of tax exempt status.

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