Legal Commentary

An item from the "debates not likely to be resolved anytime soon" file:  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." 

Now, 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.  I wrote then that "it is not clear why the claim 'human fetuses are moral subjects and this fact constrains what should be done with and to them' is any more 'religious', or any less 'moral', than the claim 'all human beings are moral equals, regardless of race, and should be treated as such in law.'  What's more, even if it were true that the former claim is 'religious' (certainly, for many, it is religiously motivated or grounded), [it's enactment into law] does not violate . . . the 'separation of church and state' that our Constitution is thought to require."

And, here we are again . . . .   

There is much in Prof. Stone's piece with which I (and, I would think, most reflective religious believers) agree.  For example, we 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"  We (and Pope Benedict XVI) also 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."  How do we know that this is not what most of 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 seem to follow from the fact that most of Prop. 8's supporters are religious believers, or even from the fact that their religious beliefs are consonant with Prop. 8, and motivate them to support Prop. 8, that they are trying to "impose their religious views on others."

Let's take it as given that, in a society like ours, citizens should not try to use the law to "impose their religious views on others."  How, exactly, do we decide (a) what counts as an "imposition", and (b) what counts as a distinctly "religious" view?  It seems to me that the question whether Prop. 8 is constitutional, or advisable, or deeply unjust, is not best answered by trying to pin down the nature ("religious" or "moral"?) of the beliefs it represents.