Dishonoring America's Promise of Religious Freedom

. . . but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

(U.S. Constitution, Art. VI, cl. 3)

      The Framers could hardly have been clearer, but political history has made short shrift of their effort to create what in 21st-century parlance would be called a non-sectarian state. Over more than two centuries now, every president of the United States has been a Christian — and as a practical matter required to profess as much.
      Still, nothing in American history provides a precedent for the extraordinary episode over the past weekend [Aug. 28-29] in which a radio and television commentator with no known theological training went on national television to depict the sitting president as a bad Christian. For that is what Americans who did not spend Sunday morning in church got if they watched and listened to Glenn Beck attack President Obama for what Beck called the president’s devotion to “liberation theology.”
      In Beck’s telling (on “Fox News Sunday,” under relatively friendly questioning from his fellow Fox-man, Chris Wallace), Obama is wrong about how to achieve salvation. Beck says that instead of seeing salvation as requiring an individual relationship with God, the president views salvation through the collectivist lens of “liberation theology.”
      “You see, it's all about victims and victimhood; oppressors and the oppressed; reparations, not repentance; collectivism, not individual salvation,” Beck said. “I don't know what that is, other than it's not Muslim, it's not Christian. It's a perversion of the gospel of Jesus Christ as most Christians know it.”
      Perversely, Beck’s critique of Obama’s supposed religious views came by way of an apology for his previous description of Obama as a “racist” with a “deep-seated hatred of white culture.” So, now, instead of seeking to estrange Obama from his followers on the unacceptable basis of race, Beck chooses religion instead. And he did so in the context of the widely shared view among Republicans and conservatives that Obama is actually a Muslim.
      Beck’s religion-based attack came one day after he presided over his self-styled “Restoring Honor” rally in Washington, which drew an impressive if not overwhelming crowd stretching from the steps of the Lincoln Memorial to the Washington Monument. The three hours of speeches were largely clear of political divisiveness, but in their overt Christianity — to the exclusion of other faiths — they carried the taint of sectarianism.
      It is worth recalling that for 170 years, it was a recognized fact of political life that the president must also be a Protestant: no Catholics need apply. John F. Kennedy broke that barrier, but only after satisfying a “religious test” that he would not take his Catholicism into the Oval Office when making political decisions.
      The country today is more religiously pluralistic and in some ways more religiously tolerant than ever before. Joe Lieberman’s religion was of course remarked when Al Gore selected him as the Democratic nominee for vice president in 2000 and the first Jew ever to run on a national ticket of a major party. But Lieberman’s religion never amounted to an issue in the campaign.
      The country’s religious pluralism definitely has its limits. Could a Jew be elected president today — or in your lifetime? The odds are no better than 50-50. Can a Muslim be elected to Congress without controversy? No, as Rep. Keith Ellison, the Minnesota Democrat, learned when he took the oath by swearing on a Koran instead of the Christian Bible.
      And one need go no further than the pages of the week’s newspapers to know that religious divisiveness is spiking these days. Exhibit No. 1: the debate over the proposed Islamic center to be built in lower Manhattan, a few blocks from “Ground Zero.” Even if one grants the particular sensitivities of some Americans to siting a mosque — one of the planned uses of the center — so near to the epicenter of the Sept. 11 attacks, there is also exhibit No. 2: the apparent torching of construction equipment at the site of a planned mosque in Murfreesboro, a town in Tennessee hundreds of miles from New York City.
      Beck’s understanding of “restoring honor” to America had no room for an appeal for tolerance for those who do not share his Christian faith, no room for denouncing the acts of intolerance and even violence against Muslim Americans. As a Mormon, Beck should know better. Mormons themselves were and still are depicted as un-Christian by many Christians, who see them as worshiping a false savior other than Jesus.
      Beck’s rally was at the same site, and on the same date, as the historic “March on Washington for Jobs and Freedom” in 1963. Among the great anthems of the civil rights movement was “We Shall Overcome” with one of its refrains celebrating “black and white together.” On the dais that day, and in the audience, Christians and Jews were conspicuously united in a cause truly dedicated to “restoring honor” in the United States.
      Sadly, Beck’s rally did not appeal to that unifying sentiment. There would have been honor indeed had he done so, but little real honor in its absence.

Laying Out the Fact on Gay Marriage Rights

      When future Supreme Court justice Louis Brandeis was defending early in the 20th century the constitutionality of an Oregon law limiting hours of laundry workers, he adopted a then unheard of legal strategy. Brandeis filled his brief to the Supreme Court not with legal abstractions, but with documented facts showing the adverse health and social effects of long hours on laundry workers, virtually all of them women.
      This first ever “Brandeis brief,” recently displayed at the court by the curator’s office, revolutionized Supreme Court practice. Today, advocates and judges alike emphasize facts, not legal abstractions, as a matter of course in constitutional litigation.
      Federal judge Vaughn Walker understood this mode of constitutional adjudication in his precedent-making decision on Aug. 4 to strike down Proposition 8, the voter-approved initiative in California denying marriage rights to same-sex couples. The guts of his 136-page ruling in Perry v. Schwarzenegger, available here, consists of 50 pages of “findings of fact,” carefully annotated to testimony from the 2-1/2 week trial. Those findings point ineluctably to one conclusion: Prop. 8 has no purpose or effect other than the impermissible goals of denying gay men and lesbians the liberty to define their own life relationships and demoting them to second-class status — legally, socially, and economically.
      Those findings make it difficult, but not impossible, for a higher court to reverse Walker’s ruling. But they are aimed directly at the Supreme Court justice whose vote is essential to a victory for gay rights advocates in the case: Anthony M. Kennedy.
      Twice before, Kennedy has written and cast a pivotal vote in decisions striking down anti-gay enactments. In Lawrence v. Texas (2003), Kennedy concluded for a five-justice majority that a Texas law criminalizing gay sex infringed a protected liberty interest in defining one’s intimate relationships. Eight years earlier, in Romer v. Evans (1995), Kennedy led a 6-3 majority in concluding that a Colorado initiative forbidding passage of anti-gay discrimination laws was an animus-motivated enactment aimed solely at shutting gays and lesbians out of the political process.
      In his ruling, Walker began with a series of numbered findings of fact demonstrating the obvious and undisputed benefits of marriage. “Material benefits, legal protections, and social support resulting from marriage,” he wrote, “increase wealth and improve psychological well-being for married spouses” (FF39). Those benefits accrue as well to the children of married spouses (FF41).
      Domestic partnerships are not the same, Walker found. They are not recognized by the federal or many state governments (FF52) and in any event do not provide the same benefits or cultural status as marriage (FF53). But same-sex couples are “identical” in all relevant aspects to opposite-sex couples in their ability to form “successful marital unions” (FF48). And “marrying a person of the opposite sex,” Walker notes, “is an unrealistic option for gay and lesbian individuals” (FF51).
      Significantly, Walker notes that California law encourages gays and lesbians to become parents through adoption, foster parenting, or assistive reproductive technology; about 18 percent of same-sex couples in the state are, in fact, raising children (FF 49). Children of same-sex parents benefit when their parents can marry (FF56), and children raised by same-sex parents are as likely to be “healthy, successful and well-adjusted” as those raised by opposite-sex parents (FF70). That finding, Walker adds, is accepted by psychologists as “beyond serious debate.”
      What about the threat to “traditional marriage,” to use Prop. 8 supporters’ phrasing? “Permitting same-sex couples to marry,” Walker writes, “will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages” (FF54).
      What then does Prop. 8 accomplish? The measure, Walker writes, “places the force of law behind stigmas against gays and lesbians” — bluntly, that they are “not as good as heterosexuals” and their relationships “do not deserve the full recognition of society” (FF58). It reserves for heterosexual couples “the most socially valued form of relationship” (FF60) while it “increases costs and decreases wealth” of same-sex couples (FF66), domestic partner status notwithstanding.
      Set against the acknowledged “long history of discrimination” against gays and lesbians (FF75), the Prop. 8 campaign relied on false “stereotypes” about gays and lesbians (FF80) and unfounded fears that children exposed to the concept of same-sex marriage could become gay or lesbian as a result (FF79). And, once enacted, the measure “results in frequent reminders for gays and lesbians in committed long-term relationships that their relationships are not as highly valued as opposite-sex relationships” (FF68).
      Against that backdrop, Walker proceeds to find that none of the proffered justifications for Prop. 8 — preserving tradition, moving slowly on social change, preferencing opposite-sex parenting, or protecting freedom of opponents of same-sex marriage — pass constitutional muster. The measure has no “rational basis,” he concludes, but serves merely to “enshrine” in law the purported superiority of heterosexual to same-sex couples.
      The ruling is a testament not only to the litigation strategy of the plaintiffs’ strange bedfellow lawyers, liberal David Boies and conservative Theodore Olson, but also to the factual vacuum of the Prop. 8 campaign. Just one day later, Robert George, a Princeton professor and leading gay marriage opponent, was vowing that his side — out-litigated at trial — would be presenting new information for appeals courts to consider. For now, however, Walker’s fact-heavy decision makes the most compelling of cases to date for recognizing marriage rights for same-sex couples.