1/21//2010—The L.A. Times reported today on testimony in the trial challenging Proposition 8 in California, the state initiative that reimposed a ban on gay marriage, showing that Catholic and Mormon church leaders aided the Proposition 8 campaign.
This evidence is undoubtedly largely true, but so what? I suppose that such aid might violate laws against tax-exempt organizations engaging in politics (although most such bans pertain to partisan politics) but this lawsuit is not about that. How could religious support undermine the vote for the initiative?
For the record, I am a strong supporter of gay marriage. But I have never followed the logic of this attack. Religious opposition to gay marriage certainly may represent religious bigotry, but it cannot be unconstitutional for several reasons. For one thing, it would be rare for the motivations behind a law passed by a legislature to render a law unconstitutional. It would be nearly impossible for motivation alone to do so in the case of a voter-initiative. In addition, no court has ever held that religious motivation by itself violates the Establishment Clause. Religious motivation for allowing a religious act, such as prayer, can be unconstitutional, but not religious motivations involving a topic not inherently religious. Think how difficult it would be to separate religious motivations for a law from other motivations such that a repeal of the death penalty might be constitutional in one State and unconstitutional in another depending on why it was done.
Actually I thing there are deeper reasons for not thinking of the separation of church and state that way. Most people believe that government should not behave immorally. People who opposed the invasion of Iraq might have believed that the war would have negative consequences, but many of them thought primarily that the war was unjust. What kind of motivation is that? Religious believers may get their morality from religion, but they certainly do think that immoral behavior should be avoided. So do secularists, who presumably get their moral judgments elsewhere, but who also believe government immorality should be avoided. How can motivations for policy be separated this way?