Bench Memos

Still Stoned Out of His Mind

The California Supreme Court Wednesday decided to hear arguments concerning the legality of Proposition 8, which amended the state Constitution to restore marriage to what it was before the California Supreme Court engaged in legal adventurism by creating a right to gay marriage. 

The arguments made are pretty thin gruel, and turn on a technical question of whether the change should be an amendment, which can be passed (as Prop. 8 was) by a majority vote of the people after collecting enough signatures to qualify for the ballot, or whether it is such a drastic change that it needed to go through the more arduous process of constitutional revision. Deep down, some of the lawyers making these arguments had to find it ironic to argue that the state Constitution could not be modified to change the right to marriage through the formal amendment process, including the approval of a majority of voters, but that it could be done by four judges who changed the law by their own fiat. The case law is pretty strongly against those challenging Prop. 8, enough so that I think even the California Supreme Court will have trouble legislating . . . oops, I mean carefully legally reasoning their way to the conclusion that Prop. 8 is unlawful.

Enter Geoff Stone. Before the Court opted to hear the case, he suggested that there was really a much bigger constitutional issue at play here: the separation of church and state. He finds that Proposition 8 “enact[s] into law a particular religious belief.” For Stone, religion is the only explanation for the law: “Indeed, despite invocations of tradition, morality and family values, it seems clear that the only honest explanation for Proposition 8 is religion.” His proof: polling data which shows that evangelicals and weekly church attenders favored Prop. 8 by large margins, while non-Christians and non-church attenders opposed it. While he concedes that courts are loathe to intervene in these cases, it is clear that he thinks they should.  Indeed, to allow these kind of laws is “un-American”, as he explains with perfect tone-deaf deftness: “Indeed, regardless of whether courts can intervene in this context, it is as un-American to violate the separation of church and state by using the power of the state to impose our religious beliefs on others as it is to use the power of the state to impose our discriminatory views of race, religion or gender on others.”

Where to begin? Should we talk about the fact that a traditional head of the police powers of the state are morals, which often were derived from the religious sentiments of the people? Should we discuss the role of religious law like the Decalogue in shaping much of American law? Should we dispute the correlation between religious voters and religious enactments, noting that weekly church attenders also vote overwhelmingly for other things that Geoff Stone no doubt despises, like Republican party presidential candidates? Should we dispute the premise that “only” religion explains the outcome in the election, and that people of very different religious faiths and no faith at all reached the same conclusion in voting for Prop. 8? No, to do so gives Stone too much credit. His arguments don’t even qualify as reasonable fringe in establishment clause jurisprudence. 

One might wish to dismiss his blog post simply as a poorly thought out whim made on a Sunday afternoon, after church bells in Hyde Park’s somehow triggered dementia. But alas, Stone has a track record of these absurdly anti-religious rants to allow such a kind explanation. As Bench Memos readers will recall, he previously asserted that the court’s decision upholding the federal partial-birth abortion statute was a result of a new Catholic majority on the Court. My old friend Ed Whelan made easy work of his argument here, here, here, here, here, and here.

What then becomes obvious is that it is Stone who is acting with religious fervor by attempting to impose his religious, or if you prefer, irreligious beliefs or morality on the public square. The First Amendment was not intended to prohibit religious participation in political life, and it certainly does not mandate that only the morals of the non-church-attenders are constitutionally permissible bases of legislation. But it is not suitable to claim that arguments like Stone’s are “un-American,” to borrow his line. They are simply foolish. 

Robert Alt — Robert Alt is the president and chief executive officer of The Buckeye Institute.

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