December 21, 2008
Warren-gate and the First Amendment
Posted by: Chris
There is a deeply disturbing undercurrent to the arguments made by those who want Barack Obama to rescind the invocation invitation to Southern Baptist evangelist Rick Warren in favor of a minister with friendlier views on gay marriage or homosexuality. While you and I might view this campaign as well-intentioned, the 16 million members of Warren's denomination understandably feel otherwise, as do many millions who belong to faith traditions with similar views.
We gays are very accustomed to Southern Baptists and other evangelical and fundamentalist faiths attempting to have their beliefs about homosexuality enshrined into law, always at the expense of our freedom or civil rights. But now the shoe is on the other foot.
The angry blogosphere, D.C.-based gay groups and their progressive allies are basically demanding the president-elect remove one minister from his role in a major public ceremony because of his religious beliefs and replace him with one who is more acceptable. Their demand ought to trouble everyone, particularly LGBT Americans and anyone else who values the First Amendment separation between church and state.
The use of public ceremonies to show official government favor of one group over another runs directly afoul of the First Amendment's "establishment clause," which prohibits the government from establishing an official religion, or even from sending direct or indirect signals that some faith groups or views are preferred over others. The clear motivation for Obama showing favor for one set of beliefs over the other, as well as the obvious effect, is for the new president to signal that religious beliefs like Warren's are on the "outs," and religious beliefs approved by gays and progressives are on the "ins."
That same intent, and that same obvious effect, are why the First Amenment does not permit official prayers in public schools and high school football games, and why we no longer have manger scenes at Christmas time in front of city halls and state capitols. That's why Roy Moore was removed as chief justice of the Alabama Supreme Court for refusing to remove a monument to the Ten Commandments from the courthouse rotunda.
In my public school here in the suburbs of Memphis, Tenn., we began each and every day with the Pledge of Allegiance ("under God" included) and the national anthem, but that wasn't all. We also sang along to Kate Smith on "God Bless America," and our principal led the students in reciting "The Lord's Prayer." Jewish students stayed quiet, obviously, and Jehovah's Witness adherents stepped out into the hallway for our morning intercom revelry.
The motivations behind these official displays of religious preference, and certainly their impact, are directly analogous to why gay folks are demanding that Warren be removed from the inauguration, and the obvious effect on the public if Obama ultimately caves.
To be fair, it is partly Obama and Warren's fault that church and state are entangled here. The president-elect's decision to include a religious invocation and benediction, while noncontroversial and in keeping with tradition, opens the door to these kinds of debates. What's more, marriage as an institution is a conflation of law and religion, "vesting power" in ministers to officiate at a religious ceremony that has legal effect.
Warren makes matters worse, of course, by basing his opposition to gay marriage and support for Proposition 8 on his religious beliefs about homosexuality. I've long believed that laws excluding gays from civil marriage are, in and of themselves, a violation of the First Amendment establishment clause, since the primary objections to marrying gay couples -- repeated in one form or another by conservative politicians and pastors alike -- are their personal religious views about "the sanctity of marriage." The government ought not to be choosing which denominational views about marriage by same-sex couples will be enshrined in the law.
So do we really want to jump into the Blblical battle over marriage, asking the president-elect to signal to the public that views held by Warren and millions of others are disfavored by the government? Shouldn't we be arguing that the Bible and religion are an illegitimate basis from excluding gays from a fundamental freedom and civil right?
Gay folk and progressives exorcised by the selection of Warren would be much better served focusing on winning the political debate over marriage, in part by arguing for the separation of church and state, than by trying to use the president-elect to show our religious beliefs are in favor. Not only is that fight an anathema to the First Amendment, it's a loser with the majority of church-going Americans today.
(Pictured is former Alabama Chief Justice Roy Moore and a cake honoring the Ten Commandments memorial that federal courts had removed from the courthouse of the state supreme court.)
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