Bench Memos

Prof. Stone, Prop. 8, and Church-State Separation

In this piece, Prof. Stone contends (among other things) that California’s Proposition “was a highly successful effort of a particular religious group to conscript the power of the state to impose their religious beliefs on their fellow citizens, whether or not those citizens share those beliefs”, and that “[t]his is a serious threat to a free society committed to the principle of separation of church and state.” (Prof. Stone and I went back and forth on (pretty much) the same question, a year or two ago, in the context of the Supreme Court’s decision upholding the ban on partial-birth abortion.)

There is much in Prof. Stone’s piece with which I (and, I would think, most reflective religious believers) agree. For example, he is right, I think, that “[t]he First Amendment gives us virtually absolute protection to preach, proselytize and evangelize.”  We also agree — as it happens, I have good religious reasons for believing — that, as Greg Kalscheur has put it, there are “moral limits on morals legislation”

Prof. Stone and I (and Pope Benedict XVI) agree entirely regarding the importance of the principle of “separation of church and state”, properly understood. To invoke this principle’s importance though, and even to point to the fact that religious believers were much more likely to support Proposition 8 than were non-believers, does not, in my view, establish the point that Prop. 8 is (putting aside other questions about its merits) an effort to (in his words) “conscript the authority of the state to compel those who do not share their religious beliefs to act as if they do.” As Stone himself writes, “[l]ike other citizens, [religious believers] are free in our society to support laws because they believe those laws serve legitimate ends, including such values as tradition, general conceptions of morality, and family stability.” I do not see why we should think that this is not what Prop. 8’s supporters believe. Stone insists that religious believers “are not free — not if they are to act as faithful American citizens — to impose their religious views on others”, but again, it does not follow from the fact that most of Prop. 8’s supporters are religious believers that they are trying to “impose their religious views on others.” (There are all kinds of issues, I would think, where it can be said that substantial support for the position enshrined in law comes or came from religious believers. After all, lots of Americans are religious believers.)

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