In Prop 8 Ruling the Constitution Triumphed Over Theocracy

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It was a good day for the Constitution when Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, struck down Proposition 8 as a violation of the Constitution’s free exercise clause. It was proof of as Judge Walker wrote, “Tradition alone, however, cannot form the rational basis for a law.”

It has always struck me as odd that since every state had to ratify the Constitution that any state could later decide that their citizens could vote to rescind a part of it they don’t like. They seem to miss the very important detail that the Constitution was ratified – it applies to everyone, not just to those of whom you approve. You cannot say since you don’t like how someone things or lives or dresses or believes or fails to believe that they don’t have equal protection.

It was just a few days ago that we were informed by the Republican Lt. Governor of Tennessee that the free exercise clause doesn’t apply to cults – only to religions. And this Christian gentleman has decided that Islam is not a religion.

Is it any surprise to anyone that Christian conservatives like to decide who should be protected by the Constitution and who should not?

And as always, the arguments raised in defense of these violations are simplistic and disingenuous.

We are told that in the case of gay marriage that the GBLT community is seeking more rights than everyone else, not equal rights. After all, these Christian opponents say, they can’t marry someone of the same sex either! Or we are told, as by Andrew Pugno, a lawyer for the defense, that Proposition 8 had nothing to do with discrimination, but rather with the will of California voters who “simply wished to preserve the historic definition of marriage.”
See, it’s not about discrimination after all. These wonderful folks are just defending history.

The problem is that marriage is nowhere defined as between one man and a woman even in the Bible, and other cultures have given far wider latitude to couples. Nor does the claim that marriage is a religious and not a social institution hold any water historically.

It is difficult to believe that Mr. Pugno was able to keep a straight face when he said, “The other side’s attack upon their good will and motives is lamentable and preposterous.”
Good will indeed. We don’t approve of you, therefore we have voted to deprive you of your constitutional rights, even though our state has previously ratified the constitution. We’ve decided, with the best will imaginable, that this was an oversight and we’re going to correct it now. No bad feelings?

It doesn’t work, Mr. Pugno.

And to Jim Garlow, the pastor of Skyline Church in La Mesa California, who said “This is going to set off a groundswell of opposition. It’s going to rally people that might have been silent.”

To date, it doesn’t seem many people have actually been silent. He may have missed the groundswell of opposition to Proposition 8, or perhaps he was too busy bussing in Mormon support and cash from Utah to influence the voters of his state, to pay any attention to what anyone else thinks.

Those in favor of Proposition 8 argued that same-sex marriage endangered “traditional” marriage (again, found nowhere in the Bible where people found plenty of other ways to procreate and by no means universal historically) and that this “traditional” marriage is meant to foster procreation. Of course, same-sex unions cannot produce children, and is therefore in some sense a threat to the human race. It may escape the notice of the folks that we humans have had no problem overpopulating the earth to dangerous levels.

Fortunately, Judge Walker was not fooled: “Tradition alone, however,” he wrote, “cannot form the rational basis for a law.”

And this is true, particularly when it is the “tradition” of one religion (found nowhere in the Bible). There are other traditions and other religions and the free exercise clause ensures Americans that the government will not put its support behind one particular religion.

Of course, here the Constitution is incompatible with Christianity, which claims a privileged position and demands it be recognized by the government. We can always point to the Constitution in response to these specious bits of argument but conservatives have shown that while do they not like the idea of a “living” Constitution, they have no problem in thinking they should be able to pick and choose which parts apply.

Of course, they do that with the Bible too, so maybe we shouldn’t be surprised.

Hrafnkell Haraldsson

Hrafnkell Haraldsson, a social liberal with leanings toward centrist politics has degrees in history and philosophy. His interests include, besides history and philosophy, human rights issues, freedom of choice, religion, and the precarious dichotomy of freedom of speech and intolerance. He brings a slightly different perspective to his writing, being that he is neither a follower of an Abrahamic faith nor an atheist but a polytheist, a modern-day Heathen who follows the customs and traditions of his Norse ancestors. He maintains his own blog, A Heathen’s Day, which deals with Heathen and Pagan matters, and Mos Maiorum Foundation www.mosmaiorum.org, dedicated to ethnic religion. He has also contributed to NewsJunkiePost, GodsOwnParty and Pagan+Politics.