Proposition 8 has passed, denying to some the right enjoyed by other citizens in California, the right to marry. Now, the central question for the courts to decide is: Are gays in California equal, or can members of certain churches declare them constitutionally inferior?The approval of a constitutional ban on gay marriage raises troubling but age-old issues concerning the lines between religion and government. Before the founders of our country separated church and state, there were hundreds of years of turmoil caused by one religion dominating the government and using it against nonbelievers.
In the aftermath of Tuesday's vote, do gays and lesbians in California have a reason to believe that they have been abused, discriminated against and relegated to a separate-but-equal status?
Yes, and that's why this fight is far from over. There will be a challenge under the U.S. Constitution. In the 1960s, the U.S. Supreme Court struck down a California constitutional amendment that limited fair housing on the grounds that prejudice could not be put into a state Constitution.
No one can forecast the outcome of this next fight, but there is bound to be some fallout that may harm those religions that so vehemently insisted that their beliefs be placed in the California Constitution. All religions require tolerance to flourish, but in Proposition 8 some religious groups aimed at and wounded gay people in California.
The drafters of the U.S. Constitution had a brilliant, experienced view concerning the importance of drawing the lines to protect religion on the one hand and civil government on the other. They put those lines in the First Amendment to the U.S. Constitution. Today, those lines are very relevant.
Government may not attack religion. Californians who have religious beliefs concerning the proper scope of marriage may exercise those rights as they see fit. Churches have always been able to proceed as they wish concerning marriage ceremonies. There was no mandate to suppress religious beliefs. This should be obvious to everyone in California because of our tolerance of all religions.
That the supporters of Proposition 8 were motivated by religious beliefs cannot be denied. Now the religious beliefs of some Californians are in our Constitution and, until overturned, govern us all whether we like it or not.
The other branch of the First Amendment is equally important. The state may not establish a religion. The state may not take principles of religious belief from a religion, any religion, and establish it as the law applicable to all. This line establishing the double branch of protection of religion on the one hand and no establishment on the other was arrived at after hundreds of years of turmoil.
Historically, marriage was used as a method of oppressing a despised group. These lessons of history are relevant to reflect on today. In Ireland, for 150 years, the penal laws provided that no Protestant could marry a Catholic.
Much more recent in the United States were the rules against marriage between a black person and a white person. These were struck down by the U.S. Supreme Court in the 1960s and the California Supreme Court in the 1940s. Using the civil marriage ceremony as a method of expressing governmental disdain toward a particular group is as old as the Sierra Nevada. It has been an assault on tolerance.
Finally, marriage is a fundamental right in constitutional analysis. There are very few things in life more important than the ability to choose one's partner. Marriage is not just a word; it is a status, a state of mind, a way of being. Look in any direction and you will see examples of the people's respect for the institution of marriage.
A large group of Californians has now been denied that fundamental institution. These folks are our neighbors, our friends, our colleagues and our relatives. The constitutional promise of this state is, as the California Supreme Court held, that they are equally protected in the enjoyment of rights by all Californians. But the voters have spoken.
Now it will be up to the courts to explain whether equality is real - or just an illusion. I would not wish to be the one to justify this vote to a gay woman going to Afghanistan in the military, to a gay police officer who risks everything so we may be safe or any of the other thousands of gays lesbians in California who contribute so much to our culture, our advancement and our well being.
I cannot square this vote with my view that Californians are decent, accepting and tolerant. But I know that the gays and lesbians of California, like the oppressed Catholics of Ireland who lived under penal laws, will fight this visible, constitutional, embarrassing injustice until it is no more. And when that day comes, we will live in a better state.
James Brosnahan, author of the "Trial Handbook for California Lawyers," is a senior partner at the Morrison & Foerster law firm in San Francisco.
This article appeared on page G - 3 of the San Francisco Chronicle
Now, you can reach me in my room, apparently I need a timeout.
I am told by a very well informed confidant that should you need help on the issues Fr. Christian Troll is offering his services (for a small fee?)All kidding aside - VOTE -
No on Proposition 8
Debunking the myths used to promote the ban on same-sex marriage.
November 2, 2008
Clever magicians practice the art of misdirection -- distracting the eyes of the audience to something attention-grabbing but irrelevant so that no one notices what the magician is really doing. Look over at that fuchsia scarf, up this sleeve, at anything besides the actual trick.
The campaign promoting Proposition 8, which proposes to amend the state Constitution to ban same-sex marriages, has masterfully misdirected its audience, California voters. Look at the first-graders in San Francisco, attending their lesbian teacher's wedding! Look at Catholic Charities, halting its adoption services in Massachusetts, where same-sex marriage is legal! Look at the church that lost its tax exemption over gay marriage! Look at anything except what Proposition 8 is actually about: a group of people who are trying to impose on the state their belief that homosexuality is immoral and that gays and lesbians are not entitled to be treated equally under the law.
That truth would never sell in tolerant, live-and-let-live California, and so it has been hidden behind a series of misleading half-truths. Once the sleight of hand is revealed, though, the campaign's illusions fall away.
Take the story of Catholic Charities. The service arm of the Roman Catholic Church closed its adoption program in Massachusetts not because of the state's gay marriage law but because of a gay anti-discrimination law passed many years earlier. In fact, the charity had voluntarily placed older foster children in gay and lesbian households -- among those most willing to take hard-to-place children -- until the church hierarchy was alerted and demanded that adoptions conform to the church's religious teaching, which was in conflict with state law. The Proposition 8 campaign, funded in large part by Mormons who were urged to do so by their church, does not mention that the Mormon church's adoption arm in Massachusetts is still operating, even though it does not place children in gay and lesbian households.
How can this be? It's a matter of public accountability, not infringement on religion. Catholic Charities acted as a state contractor, receiving state and federal money to find homes for special-needs children who were wards of the state, and it faced the loss of public funding if it did not comply with the anti-discrimination law. In contrast, LDS (for Latter-day Saints) Family Services runs a private adoption service without public funding. Its work, and its ability to follow its religious teachings, have not been altered.
That San Francisco field trip? The children who attended the wedding had their parents' signed permission, as law requires. A year ago, with the same permission, they could have traveled to their teacher's domestic-partnership ceremony. Proposition 8 does not change the rules about what children are exposed to in school. The state Education Code does not allow schools to teach comprehensive sex education -- which includes instruction about marriage -- to children whose parents object.
Another "Yes on 8" canard is that the continuation of same-sex marriage will force churches and other religious groups to perform such marriages or face losing their tax-exempt status. Proponents point to a case in New Jersey, where a Methodist-based nonprofit owned seaside land that included a boardwalk pavilion. It obtained an exemption from state property tax for the land on the grounds that it was open for public use and access. Events such as weddings -- of any religion -- could be held in the pavilion by reservation. But when a lesbian couple sought to book the pavilion for a commitment ceremony, the nonprofit balked, saying this went against its religious beliefs.
The court ruled against the nonprofit, not because gay rights trump religious rights but because public land has to be open to everyone or it's not public. The ruling does not affect churches' religious tax exemptions or their freedom to marry whom they please on their private property, just as Catholic priests do not have to perform marriages for divorced people and Orthodox synagogues can refuse to provide space for the weddings of interfaith couples. And Proposition 8 has no bearing on the issue; note that the New Jersey case wasn't about a wedding ceremony.
Much has been made about same-sex marriage changing the traditional definition of marriage. But marriage has evolved for thousands of years, from polygamous structures in which brides were so much chattel to today's idealized love matches. In seeking to add a sentence to California's Constitution that says, "Only marriage between a man and a woman is valid or recognized," Proposition 8 supporters seek to enforce adherence to their own religious or personal definition. The traditional makeup of families has changed too, in ways that many religious people find immoral. Single parents raise their children; couples divorce and blend families. Yet same-sex marriage is the only departure from tradition that has been targeted for constitutional eradication.
Religions and their believers are free to define marriage as they please; they are free to consider homosexuality a sin. But they are not free to impose their definitions of morality on the state. Proposition 8 proponents know this, which is why they have misdirected the debate with highly colored illusions about homosexuals trying to take away the rights of religious Californians. Since May, when the state Supreme Court overturned a proposed ban on same-sex marriage as unconstitutional, more than 16,000 devoted gay and lesbian couples have celebrated the creation of stable, loving households, of equal legal stature with other households. Their happiness in no way diminishes the rights or happiness of others.
Californians must cast a clear eye on Proposition 8's real intentions. It seeks to change the state Constitution in a rare and terrible way, to impose a single moral belief on everyone and to deprive a targeted group of people of civil rights that are now guaranteed. This is something that no Californian, of any religious belief, should accept. Vote no to the bigotry of Proposition 8. (my emphasis).
PS: Thanks to cany and Susan Russell for the heads up.
We can get a bit scrappy here at times, and realize this means the occasional food fight might transpire. Truly anonymous comments don't allow anyone to keep track of the over-ripened tomatoes in the air, so kindly sign on to Blogger or use a consistant nom de plume in a thread.
