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SF Chronicle, November 9, 2008

Church and state: The issue of Prop. 8

By James Brosnahan

Proposition 8 has passed, denying to some the right enjoyed by other
citizens in California, the right to marry. Now, the central question for
the courts to decide is: Are gays in California equal, or can members of
certain churches declare them constitutionally inferior?

The approval of a constitutional ban on gay marriage raises troubling
but age-old issues concerning the lines between religion and government.
Before the founders of our country separated church and state, there were
hundreds of years of turmoil caused by one religion dominating the
government and using it against nonbelievers.

In the aftermath of Tuesday's vote, do gays and lesbians in California
have a reason to believe that they have been abused, discriminated
against and relegated to a separate-but-equal status?

Yes, and that's why this fight is far from over. There will be a
challenge under the U.S. Constitution. In the 1960s, the U.S. Supreme Court struck
down a California constitutional amendment that limited fair housing on
the grounds that prejudice could not be put into a state Constitution.

No one can forecast the outcome of this next fight, but there is bound
to be some fallout that may harm those religions that so vehemently insisted
that their beliefs be placed in the California Constitution. All religions
require tolerance to flourish, but in Proposition 8 some religious groups
aimed at and wounded gay people in California.

The drafters of the U.S. Constitution had a brilliant, experienced
view concerning the importance of drawing the lines to protect religion on the
one hand and civil government on the other. They put those lines in the
First Amendment to the U.S. Constitution. Today, those lines are very

Government may not attack religion. Californians who have religious
beliefs concerning the proper scope of marriage may exercise those rights
as they see fit. Churches have always been able to proceed as they wish
concerning marriage ceremonies. There was no mandate to suppress
religious beliefs. This should be obvious to everyone in California because of our
tolerance of all religions.

That the supporters of Proposition 8 were motivated by religious
beliefs cannot be denied. Now the religious beliefs of some Californians are in
our Constitution and, until overturned, govern us all whether we like it
or not.

The other branch of the First Amendment is equally important. The
state may not establish a religion. The state may not take principles of
religious belief from a religion, any religion, and establish it as the
law applicable to all. This line establishing the double branch of
protection of religion on the one hand and no establishment on the other
was arrived at after hundreds of years of turmoil.

Historically, marriage was used as a method of oppressing a despised
group. These lessons of history are relevant to reflect on today. In
Ireland, for 150 years, the penal laws provided that no Protestant could
marry a Catholic.

Much more recent in the United States were the rules against marriage
between a black person and a white person. These were struck down by the
U.S. Supreme Court in the 1960s and the California Supreme Court in the
1940s. Using the civil marriage ceremony as a method of expressing
governmental disdain toward a particular group is as old as the Sierra
Nevada. It has been an assault on tolerance.

Finally, marriage is a fundamental right in constitutional analysis.
There are very few things in life more important than the ability to choose
one's partner. Marriage is not just a word; it is a status, a state of
mind, a way of being. Look in any direction and you will see examples of
the people's respect for the institution of marriage.
A large group of Californians has now been denied that fundamental
institution. These folks are our neighbors, our friends, our colleagues
and our relatives. The constitutional promise of this state is, as the
California Supreme Court held, that they are equally protected in the
enjoyment of rights by all Californians. But the voters have spoken.

Now it will be up to the courts to explain whether equality is real -
or just an illusion. I would not wish to be the one to justify this vote to
a gay woman going to Afghanistan in the military, to a gay police officer
who risks everything so we may be safe or any of the other thousands of
gays and lesbians in California who contribute so much to our culture,
our advancement and our well being.

I cannot square this vote with my view that Californians are decent,
accepting and tolerant. But I know that the gays and lesbians of
California, like the oppressed Catholics of Ireland who lived under penal
laws, will fight this visible, constitutional, embarrassing injustice
until it is no more. And when that day comes, we will live in a better

James Brosnahan, author of the "Trial Handbook for California Lawyers,"
is a senior partner at the Morrison & Foerster law firm in San Francisco.

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