Same-sex Marriage, Censorship, and the Separation of Church and State
by Alan J. Reinach, Esq.
Introduction: A group calling itself “Adventists Against Proposition 8” (AAP8) has challenged the Church State Council’s support for a California Constitutional Amendment retaining the definition of marriage as between a man and a woman. This group insists that the church’s historic views of the separation of church and state warrant such opposition. The statement below is an attempt to shed light on the confusion about the separation of church and state.
When people argue that same-sex marriage is immoral, critics often attempt to rule their moral and religious arguments out-of-order: “Religion cannot be the basis of law,” they contend. “You are trying to make your religion the rule for everyone, and this violates the separation of church and state.” Is this true? Are people of faith trying to impose their religious view of marriage on society as a whole? Are they violating the Constitution?
There is an obvious double standard. Those who support same-sex marriage insist that “equality” is the higher moral good, and that all couples should be entitled to marry. So the only moral position ruled out of bounds is the moral position that gay marriage is immoral. This is just plain hypocrisy.
The separation of church and state argument is equally false. This is because marriage has been the foundation of society from the dawn of human civilization, no matter the religion or culture.
There has never been any question about whether marriage extends to same-sex couples. Until a decade ago, homosexual activity was illegal in many states. Throughout the history of this nation, the state merely recognized marriage, and provided a civil structure of laws to govern it, but never asserted the power to change the nature of the institution.
Now, for the first time, the courts have asserted the right to change the definition of marriage, and to impose on the state of California the moral and religious views of a minority, views many believe to be immoral and irreligious. So how can it be fair for the gay community to impose its moral view on society, but unfair for religious people to advocate a more traditional approach to marriage? The contention that religious people cannot advocate religiously based moral views as public policy is simply censorship. The bedrock of the American constitution is full and free public debate of issues. By all means, let the debate be civil and without rancor, but no one’s views of what is moral or sound policy deserves to be silenced!
With this in mind, we still need to answer the question: do people of faith violate the Constitution when they advocate that marriage be restricted to a man and a woman?
Most basic to understanding the First Amendment religion clauses is the recognition that it was intended to protect religious freedom. This is what Thomas Jefferson meant when he observed that both clauses erected a wall of separation between church and state.
The California Supreme Court has now held that the right of gays to equality is fundamental, while refusing to recognize that religious freedom is a fundamental right. This has created a legal imbalance that effectively means that religious values regarding sexual morality now constitute “discrimination,” and can be punished. This is more fully documented on our website, at www.churchstate.org. Clearly, this is NOT religious freedom. Instead, religious freedom is now subordinated to “equality.”
The First Amendment has been turned into a weapon against religious freedom! Instead of protecting the freedom of religious people to speak their minds about morality, it is now being used as a tool to silence them, (censorship), and to rule their moral views unacceptable.
Clearly, we need a better understanding of the separation of church and state, one that actually respects and protects religious freedom. Thankfully, there is such a “better understanding.”
The Supreme Court has often relied on a three-part analysis known as “the Lemon test,” after the case of Lemon v. Kurtzman (1971), to determine whether a law or state action violates the Establishment Clause. This test is a very helpful tool for thinking about whether advocating for marriage violates the First Amendment. The Lemon test requires laws: 1) to have a primary secular purpose; 2) a primary secular effect; and 3) not unduly entangle church and state.
Marriage most definitely serves important secular purposes and has a secular effect: it is designed to provide a loving father and a loving mother to children, who require both parents. There is nothing improper or unduly religious about wanting to promote marriage for the good of families, children and society. Moreover, retaining the historic definition of marriage does not have anything to do with “entangling” church and state. After all, religious groups have lined up on both sides of the debate. So which ones are violating the First Amendment by advocating their view of what marriage policy should be? Thus, retaining the definition of marriage as a man and a woman simply does not pose a meaningful threat to the separation of church and state. Nor is there anything in the language of Prop 8 that is even remotely religious. It simply states that: “only marriage between a man and a woman shall be valid and recognized in California.”
One of the primary aspects of the First Amendment is that religion is beyond the jurisdiction of the state. This means that the state cannot regulate the religious aspects of marriage. Proposition 8 does not include any religious aspects of marriage, only civil laws concerning marriage. All sides of this debate concede that the state has the right to legislate the civil rules on marriage; they just differ on what those rules should be.
Unfortunately, there is a great deal of misunderstanding about the meaning of separation of church and state. Religious conservatives tend to denigrate church-state separation, because they want a much stronger overlap between the spheres of church and state. They want more unity of purpose, more religion in government and public life, not more separation.
“Secularists” view all religion negatively. They seek to reduce the influence and place of religion in public life. Such secularists desire a more complete separation of the spheres of government and religion. They argue that whenever public policies reflect religious values in even a remote sense, such policies violate the First Amendment. American courts have never embraced this view of separation of church and state, and moreover, neither has the Seventh-day Adventist Church.
Discussions with some Adventist advocates of church-state separation suggest that the reason for their opposition to Proposition 8 derives from the conviction that marriage is and ought to be, primarily religious. In their reasoning, since marriage is an institution ordained by God in Eden, it is fundamentally religious. Thus, they are unable to see that the state does not concern itself with marriage as a religious institution, but only in its civil aspects. We certainly do agree that marriage is religious, and that it was ordained by God in Eden. For us, it is profoundly religious, but that does not make civil marriage as regulated by the state inherently religious.
There is a danger in exalting separation of church and state into an absolute principle; a goal in and of itself. We have found, in practice, that both extreme positions, those of religious conservatives and of secularists alike, pose grave threats to liberty of conscience and religion. With respect to marriage, we have already written extensively as to why same-sex marriage threatens the very existence and survival of organized religion in America. We won’t repeat it here. A balanced view of church and state looks to the purpose of the First Amendment – protecting religious freedom, not at some abstract notion of complete and utter separation of religion and government. Such separation is possible only in theory, not in reality.
In our own advocacy of Proposition 8, there are two points worth repeating here: first, the Church State Council has not opposed gay rights generally, or domestic partner rights in particular. Our interest in Proposition 8 is simply about our support for marriage and for religious freedom. Second, we have been teaching church members to make secular, not religious arguments in favor of marriage in their public discussion of the issues. We believe the wisdom of God with respect to marriage can be universally discerned by all, regardless of religious belief or lack thereof. The importance of marriage to society, to families and children, is easily understood without reference to specific religious teachings.
Sadly, the culture war has rendered the battle over marriage into a “zero sum game,” with winners and losers, instead of fostering a compassionate climate where the rights and interests of all can be respected. In the end, the most important stake holder without a voice in this marriage debate is our children, whose wellbeing depends on the preservation of marriage.