The Proposition 8 constitutionality trial is wrapping up in San Francisco. It’s been a revealing case. Just as the controversy over homosexual behavior in the churches is actually a symptom of a far more important issue (the nature of the authority and trustworthiness of Scripture), so the trial has been about more than just same sex marriage. It’s also about the freedom of religious believers to contribute to the political decision-making process. According to the lawyers for the opponents of the same sex marriage ban, the answer to that is: sit down and shut up:
[Trial judge Vaughn] Walker asked:
If the evidence of the involvement of the LDS and Roman Catholic churches and evangelical ministers supports a finding that Proposition 8 was an attempt to enforce private morality, what is the import of that finding?
That’s a lousy question, though not surprising considering Walker’s bias has been on view throughout the trial. What, exactly, is “private morality,” and what does it have to do with same sex marriage? Marriage is a public institution–if it wasn’t, none of the political and legal wrangling over it would be necessary–the constituent elements of which make a public difference on a whole range of items from taxes to child custody to liability to you name it. But it’s the answer that is really scary:
[Opposition lawyers Ted] Olson and [David] Boies respond:
The evidence at trial established that the LDS and Roman Catholic churches played an instrumental role in the passage of Prop. 8….
…They produced and funded campaign messages in support of Prop. 8, which stated and implied that same-sex relationships are immoral. Moral disapproval of gay and lesbian individuals, however, is not a legitimate government interest. See Lawrence [the Texas sodomy decision], (“the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice”). Indeed, the Supreme Court “acknowledged” in Lawrence that, “for centuries[,] there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives.” “These considerations,” however, did “not answer the question before” the Court in Lawrence. Our obligation,” the Court explained, “is to define the liberty of all, not to mandate our own moral code.”
Because Prop. 8 was an attempt to enforce private moral beliefs about a disfavored minority—and does not further any legitimate state interest—it is unconstitutional. [Edited to remove irrelevant legal citations--DF.]
This is a truly extraordinary claim (as was the separation of law and morality in Lawrence, one of the most badly reasoned Supreme Court decisions in recent memory, but that’s another issue). In essence, Olson and Boies are saying that the courts 1) have the ability to determine the motivations behind a political stance; 2) may weigh the arguments made for a political stance in the general public; and 2) declare that political position illegitimate if they don’t like the motive or the arguments used in a political campaign. Keep in mind that what the lawyers are saying isn’t that the law is unconstitutional per se (though they argue that as well, and I have no problem with them doing so), but that the underlying beliefs that motivate some–not even all or most (the Catholic and Mormon churches were only two of the supporters of Prop 8, and lots of the Catholics and Mormons didn’t vote with their leadership)–of the supporters of that law render it not just bad public policy but constitutionally offensive. What this boils down to is that anyone may participate in the political process if they have the right beliefs; otherwise, they are to be cast into the outer darkness and prohibited from seeking to enshrine their beliefs in law (which, of course, is exactly what supporters of same sex marriage are seeking to do).
I think it a virtual certainty that Walker is going to declare Prop 8 unconstitutional, and that the Ninth Circuit Court of Appeals will uphold him (what the Supremes might do is anybody’s guess). But while the outcome in terms of who wins and who loses matters, what may be the most important thing to come out of this case will be the rationale.
(Via ADF Alliance Alert.)