Geoffrey R. Stone: Democracy, Religion and Proposition 8

How can a free society reconcile the often competing values of democracy, religious liberty and the separation of church and state? This challenge was vividly illustrated by the recent controversy over California’s Proposition 8, which forbade same-sex marriage.

In a democracy, the majority of citizens ordinarily may enact whatever laws they want. Some laws, however, are prohibited by the Constitution. For example, the majority of citizens may want a law denying African-Americans the right to vote or prohibiting Muslims from attending public schools, but such laws violate the Constitution.

Does Proposition 8 violate the Constitution? There are several arguments one might make for this position. One might argue that Proposition 8 discriminates against gays and lesbians in violation of the Equal Protection Clause. One might argue that Proposition 8 unconstitutionally limits the fundamental right to marry. One might argue that Proposition 8 violates the separation of church and state. It is this last argument that interests me.

Laws that violate the separation of church and state usually take one of two forms. Either they discriminate against certain religions (“Jews may not serve as jurors”), or they endorse particular religions (“school children must recite the Lord’s Prayer”). Proposition 8 does not violate the principle of separation of church and state in either of these ways. It neither restricts religious freedom nor endorses religious expression.

What it does do, however, is to enact into law a particular religious belief. Indeed, despite invocations of tradition, morality and family values, it seems clear that the only honest explanation for Proposition 8 is religion. This is obvious not only from the extraordinary efforts undertaken by some religious groups to promote Proposition 8, but also from the very striking voting patterns revealed in the exit polls.

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