Prop 8 and the Separation of Church and State

There is and has always been a great abyss between the religious and the secular.  Religious doctrine directs a believer’s behavior, and when a conflict arises between beliefs and the state, it seems that the logical course of action for the believer is to change the law. So it is with Prop 8.

Make no mistake; the quintessential issue underlying Prop 8 is the separation of church and state.

Separation of church and state is an American concept first proposed by Thomas Jefferson to the Danbury Baptist that a “wall of separation” between government and religion was created in the first amendment.  The first amendment begins “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

Ironically, the first Supreme Court reference to Jefferson’s idea is found in the 1878 case Reynolds v. United States. It’s ironic because Reynolds was a Mormon challenging the state’s right to prohibit bigamy and Prop 8’s biggest source of funding is the Mormon Church, according to by Dan Aiello of the Bay Area Reporter.

Reynolds was a Mormon who argued that it was his moral responsibility to marry often and that the government had no right to interfere with his constitutional right to practice his religious beliefs. The court rejected his argument.

Chief Justice Waite wrote a brilliant opinion. He first reminded the reader that prior to the adoption of our constitution the demos were frequently and unwillingly taxed to support religion, even if they were not members of the church, and were sometimes punished for failing to “attend public worship and for entertaining heretical opinions.”  The court further said “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” In other words, a person can believe anything he or she wants as long as exercising that belief does not break the law.

Prop 8 is an attempt to inject religious belief into our legal system. It is steeped in biblical writings dating back to circa 1200 BCE. There are numerous biblical references to homosexuality being an abomination in “God’s eyes.” The first is in Geneses 19:4-8 where Lot offers his virgin daughters to a mob of crazed homosexuals in an attempt to protect angels sent to warn Lot of Sodom’s looming destruction.

 If religious doctrine dictates behavior, then the author of homophobia must be the Judean based religions. Perhaps the origin of western homophobia stems from the days of Jewish captivity in Mesopotamia and Egypt. During the time of and prior to Ramses II, the prisoners of war were enslaved and some were publically sodomized as both a symbol of dominance and obedience.  It is likely that many of the Jews were publically sodomized as well as a disciplinary measure.

The Jews left Egypt after many generations of slavery and being force to watch. Once free, they enacted their own laws. If you doubt the imprint of slavery upon a people ask any African American what he thinks.

Whether or not this explains the origin of homophobia it does not address a blatant misrepresentation made by the proponents of Prop 8.  On their website, protectmarriage.com, they claim that Prop 8 “…simply restores the meaning of marriage and protects it as an essential institution that has benefited mankind since the beginning of time.” If this means that same sex marriage has never been legal, they are sadly mistaken. In fact, the first laws prohibiting same sex marriage originated in Rome after Constantine declared Christianity to be the state religion. In 438 Theodosius II, Christian emperor of Rome in Constantinople, enacted the Theodosian Code which was the first law in modern history to prohibit same sex marriage, according to Ebsco Host. In virtually every other culture prior to this time same sex marriage was accepted.

The website also states that “Proposition 8 does not discriminate against gays.” Nothing could be further from the truth. It is inherently discriminatory. When your grandfather or grandmother was a child, it was illegal for a white woman to marry a black man or vice versa in most states. During World War II Japanese Americans were rounded up and isolated even though they were American citizens.  

Professor Richard Peterson of Pepperdine University said in a TV ad that a Massachusetts Appellate decision would lead to same sex marriage being taught to school children in California. Massachusetts law is not binding on California law. Professor Peterson failed to return my phone call when asked to comment.

One television ad says that gay and lesbians have the same rights as straight people and Prop 8 does not change the law.  Then why do we need Prop 8?

It is true that in 2000 Prop 22 which banned gay marriage passed by a large majority. Unlike Prop 8, Prop 22 was not a constitutional amendment. A constitutional amendment cannot be changed by the state legislature or a judge. Injecting religious beliefs into our state constitution violates the most fundamental principals which the founding fathers of this country used to frame our constitution.

The separation of church and state is what divides California from fanatical Muslim States in the Middle East.  Prop 8 is a religiously backed issue, and worse, outsiders from other states are jumping into the fray in the mistaken belief that California’s business is their concern.

Religion has its place. It does not belong in politics. It does not belong in our constitution. Any religion that advocates discrimination  does not belong in California.