Secular v. Spiritual

Frustrated by years of wandering in the desert at the behest of a mysterious and hidden God, the Israelites melted down the collective sum of their trinkets and jewelery and forged a golden idol – a tangible symbol of their faith in a world marked by uncertainty and exasperation. Some 4,000 years later, the same feelings of uncertainty and exasperation led to the erection of another “false idol,” only this time the form was political. In 2008, the citizens of California passed Proposition 8, which amended the state constitution to specifically define marriage as a union between a man and a woman. But for the same reasons that the Israelites were wrong to place their faith in a manmade God, the proponents of Proposition 8 are wrong to place their hopes for the preservation of traditional marriage in political means. Attempting to do so is not only contrary to the spirit of our constitution, it is futile. The proper forum for the defense of traditional marriage is the Church, and this battle is one that our constitution guarantees us a right to wage.

A popular refrain being heard from nearly every corner of the conservative punditry is that Judge Walker’s decision was an illegal usurpation of “the people’s will.” Because the majority of Californians happen to agree with the traditional definition of marriage, these culture warriors are only too happy to conflate political might with moral right. It is important to remember, however, that in a constitutional republic – which America is – not everything is subject to a vote.  Indeed, our Founding Fathers were fairly clear on the point – they did not intend the United States of America to be a nation governed solely based upon the will of the majority.  When fundamental constitutional liberties are at stake, the people cannot vote to withhold or remove such liberties from a selected segment of the population.  We’ve done this in the past with shameful consequences, and this is what Judge Walker – whether rightly or wrongly – determined to have occurred in California.  Whether Walker is correct in his assessment of Proposition 8 or not, the attempt to marginalize homosexuals through a populist, majoritarian political assault is not in keeping with the original intent of our constitution.

As for the assertion that Walker’s decision signifies yet another step towards the complete breakdown of basic societal institutions, it is worth asking whether the negative impact of gay marriage upon these institutions could ever match the corrosive effect of factors such as divorce, contemporary feminism, and the ubiquitous “hookup” culture. Indeed, it is not unreasonable to view the legalization of gay marriage as the logical next step in a trend that began developing long before the “mainstreaming” of the homosexual lifestyle. Conservative columnist Ross Douthat of the New York Times suggested as much in a recent column (read the whole thing here):

“It’s the increasingly commonplace theory that marriage exists to celebrate romantic love and provide public recognition for mutually-supportive couples, with no inherent connection of any kind to gender difference and/or procreation, and with only a rhetorical connection to the ideal of permanence. Since this is basically the theory that much of our society already holds, redefining marriage to include gay relationships is unlikely to have anything like the kind of impact on American life that, say, the divorce revolution of the 1960s and 1970s did.”

As for the idea that a popular referendum will marginalize the influence of homosexuality upon American culture, one need only surf the primetime offerings available through the major networks and basic cable to know that, as a society, we reached that point some time ago. The “mainstreaming” of alternative sexual identities and lifestyles is something that has been going on for decades in America – so much so that for many people today (particularly the younger generations) it truly is a non-issue.  Encountering homosexuality is no longer novel; it’s normal.  The idea that a marginal majority of voters in California or elsewhere can reverse this new sociocultural reality through sheer political will is somewhat naïve.

Having said all this, the sacrament of marriage is in dire straights and is in need of protection and defense. But the appropriate battleground in this struggle is not at the ballot box, it is in the churches. And because a redefinition of marriage by the government is likely to result in a severe curtailment of religious liberty, American churches and their constituencies must be ready for the battle that is sure to come if Judge Walker’s decision sets the legal precedent moving forward. It is one thing for the government to redefine what “marriage” means in the eyes of the law; it is quite another for the government to use its legal authority to impose this secular definition of marriage upon private persons and organizations in the name of “equal protection.”  Such usurpations of the constitutionally protected freedoms of association and religion are already occurring.  In a recent article responding to Judge Walker’s opinion in the Proposition 8 lawsuit, Dr. Jim Garlow gives some examples of how gay marriage impacts constitutionally protected liberties (read it here):

“In the city where I live in – San Diego – two medical doctors had a biblical conviction, a Christian belief, that they would not artificially inseminate a woman unless she had a husband.  When an unmarried woman came to them and asked for the procedure, they declined, as they always had.  They told her there were other doctors who would do the procedure for her, and they referred her to them.  But that was not satisfactory to this woman.  She was a lesbian and was convinced that this was some kind of animus against her.  She took them to court, and she won.  It was going to cost one million dollars for those two doctors to take their case all the way to the U.S. Supreme Court to regain their ability to live out the First Amendment – freedom of religion.  For obvious economic reasons, they did not continue.  Their personal freedoms were crushed.

Or consider the twenty-five year old photographer in Albuquerque, New Mexico, who declined to photograph a lesbian “celebration” as per her religious convictions.  Never mind the fact that many other photographers could have and would have photographed the event.  That wasn’t good enough.  The demanding lesbians insisted that this particular photographer had to do it.  Then the state stepped in, and that court case is still ongoing. . . .

In addition, legalization of gay ‘marriage’ results in a loss of religious freedoms. . . .  [T]he Ocean Grove Camp Meeting Association is a beautiful church and camp . . . located right on the Atlantic Ocean in the town of Ocean Grove, New Jersey.  Although there are many miles of Jersey shoreline, two lesbians demanded to have an affirmation ceremony on the church’s beachfront property.  The Ocean Grove church officials lovingly explained that that would not be a possibility.  The women went to state officials.  Due to the fact that the property extended to the beach which had received some state funds, the State of New Jersey targeted this church and campground.  That case is still under litigation in New Jersey. . . .  When the government has a vested interest in defending, affirming, and protecting gay marriage, religious liberties and the right of individual conscience are lost.”

These examples highlight the dissolving line of distinction between the concept of tolerance and that of state-imposed affirmation and embrace.  If the Supreme Court ultimately decides that there exists a fundamental legal right to “marry,” then the American people must accept this determination as the law of the land regardless of their personal views on the matter, just as we’ve had to do regarding the issue of abortion since the passage of Roe v. Wade.  However, such laws should not preclude individuals from exercising their constitutionally protected liberties, including the freedom to voice one’s opinions about the morality of these actions, the freedom to exercise one’s religion without fear of state interference, and the right for private organizations to “discriminate.”  Private religious organizations should no more be forced to celebrate, host, or perform gay marriages than private physicians should be forced to perform abortions.

Unfortunately, it is quite likely that once the legal definition of marriage is reinterpreted from its traditional, western meaning to that of a glorified civil union, the growing animus against organized religion and traditional morality in America will reach a fever pitch as attempts are made to marginalize their influence using the power of the courts.  This is why a battle to preserve the constitutional liberties of Christians and social conservatives is one that we must be prepared to wage.

Erica joined the Center for a Just Society as the Director of Research in the spring of 2009 and is now a Consultant for the Center.

The CJS Forum seeks to promote an open exchange of ideas about the relationship between faith, culture, law and public policy. While all the articles are original and written especially for the CJS Forum, they do not necessarily reflect the views of the Center for a Just Society.

Picture licensed from Flickr user Remko Tanis in DC under Attribution-Noncommercial-Sharealike 2.0 Creative Commons license.