Prop 8 and religion: A moral or political issue, or both?
Getting to the Nub of the Matter
I don’t always agree with National Review’s editors, but they hit a home run with their editorial, Legislating Immorality:
To date, 30 states have voted on initiatives addressing same-sex marriage, and in every state traditional marriage has come out on top. But somehow the fact that Mormons got involved during the latest statewide referendum constitutes a bridge too far? In truth, Mormons are a target of convenience in the opening salvo of what is sure to be a full-scale assault on much of America’s religious infrastructure, which gay activists perceive as a barrier to their aspirations. Among religious groups, Mormons are not the biggest obstacle to same-sex marriage — not by a long shot. But they are an easy target. Anti-Mormon bigotry is unfortunately common, and gay-rights activists are cynically exploiting that fact.
There are no websites dedicated to “outing” Catholics who supported Proposition 8, even though Catholic voters heavily outnumber Mormons. And the Church of Jesus Christ of Latter-Day Saints is not remarkably strident in its beliefs on the subject. So far, no gay-rights activist has had the brass to burn a Qu’ran on the doorstep of a militant mosque where — forget marriage! — imams advocate the stoning of homosexuals.
(Emphasis added.) Then this:
Where do they go from here? Gay activists are already using the legal system to try to revoke the tax-exempt status of the Mormon church. If you believe that churches and synagogues, priests and rabbis won’t eventually be sued for their statements on sexuality, you’re kidding yourself. Chai Feldblum, a Georgetown University law professor and gay activist who helps draft federal legislation related to sexual orientation, says that, when religious liberty conflicts with gay rights, “I’m having a hard time coming up with any case in which religious liberty should win.” A National Public Radio report on the conflict noted that if previous cases are any guide, “the outlook is grim for religious groups.”
(Emphasis added.) This is the core of the debate, and it is not mere speculation. The court decisions are trending Cahi Feldblun’s way. For an example of the legal reasoning Feldblun advocates, see Benitez v. North Coast Women’s Care Medical Group, in which the California Supreme Court held, in a 7-0 decision, that it was a violation of a lesbian woman’s civil rights under California’s Unruh Act for a physician to decline, on religious grounds, to artificially inseminate her. The physician did refer the plaintiff to another fertility specialist who provided the service; the woman now has three children. The Supreme Court held that the physician’s religious liberty must give way to the Unruh Act’s requirements.
The Courts and Morality
There is more than one facet to to Prop 8, of course; that’s why it’s such a fascinating, consuming issue. Writing in the Wall Street Journal, William McGurn masterfully summarizes the political-judicial aspect of the ongoing battle, and the role of the courts: “What we have in America is less a culture war than a constitutional war. And if we could just straighten out the latter, we’d go a long way toward diffusing the former.”
The great achievement of our system was to create a political order where . . . great moral disputes, as a matter of policy, are left to the people — with allowance for differences according to region and locale. Moral agents have a role to play, generally by shaping the larger culture in which these decisions are framed and debated. But the outcome is left to the people acting through their elected representatives, a process that inevitably involves compromise, trade-offs and messy accommodations. . . .
What people hold as a moral ideal, however, and what they will accept as a workable compromise are two different things. Left to their own devices, most Americans can work these differences out in politics much as they do in their everyday lives, as untidy as these solutions may be.
The combination of an aggressive gay rights agenda (pressed by what I believe is a small minority of gay people), very gay-favorable laws like the Unruh Act, and compliant courts bodes ill for religious freedom. That may also be true if these matters are left to the ballot box, not the courts. But at least then, after the political process is completed, we’d all feel like we had our say in the matter.
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coltakashi on 05 Dec 2008 at 3:53 pm #
Back in the 1970s when the Equal Rights Amendment was under consideration by the states, the LDS Church caught a lot of flack for successfully opposing ratification, obviously in cooperation with many other organizations. The goals of equal rights for women has been institutionalized without a constitutional amendment, and the wisdom of opposing the ERA is apparent now. If the ERA had been ratified, equality based on “sex” would be easily transformed by judges of a left wing bent into equality for all sexual practices.
The iconic Mormon opponent of the LDS Church position was Sonya Johnson, who went on to come out as a lesbian new age demonstrator. One wonders how much of the push behind the ERA was the intent of homosexuals to create an opening in the constitution for their agenda.
A special irony is that the Supreme court found in the 1880s that religious freedom under the first amendment did not exempt someone from government laws governing marriage. Yet with the Roe v. Wade ruling and other ones on abortion and homosexuality, the courts have been giving to sexual practices an autonomy from regulation that is not based in any specific language of the constitution but has been held to override all state and federal law. A homosexual couple seem to have attained the status of separate sovereignty that is conferred only on Indian tribes. Today, the best legal path for advocates of polygamy is NOT to emphasize the religious basis of their behavior, but simply to argue that they, like homosexuals, must be allowed to give free rein to their sexual proclivities, no matter what society at large decides to the contrary.
The modern attitudes of courts reminds me of the rulings of the Utah Territorial Supreme Court, which held in the same year that the Elks Club was a tax-exempt charitable organization because it served liquor in service of fellowship, while the LDS church Women’s Relief Society was NOT a tax exempt charity even though it used its resources to provide food and clothing to the poor.
What the Left is telling us is that physical relationships are sacrosanct, but religious relationships are not.
My fear is that courts will continue to come out with decisions along this line, giving sexuality priority over religious behavior, to the point that other government officers will finally see the absurdity of the rulings, and refuse to obey them. And when that happens, the legitimacy and authority of the courts will effectively expire. By becoming lawless, judges are destroying the courts.