Civil rights activists, not who you think

Last week Dallin Oaks, one of the Quorum of Twelve Apostles (and therefore a "prophet, seer and revelator") at the head of the Mormon Church, gave a speech at Chapman University (a Christian college in Orange County with a law school) which dwelt on a common theme among those who would govern from faith:  the freedom of others is impinging on my freedom of religion.  Oaks was, tellingly, a judge on the Utah State Supreme Court (1980 to 1984) and the audience of 800 law students and others, also tellingly, applauded.  In the talk, Oaks called the workers supporting California's Proposition Eight, which ended same-sex marriages, the new civil rights workers.

In his speech and in an interview, Oaks said he didn't want to dwell on same-sex marriage. But the examples he cited of intrusions on religious liberty were almost all related to that debate.

But these arguments reveal more about the arguer than about the subject at hand.  Religious freedom is only under attack if you consider controlling society to be part of your religion.  As one writer from a Mormon background wrote about Oaks' presentation

... What are the evidences that religious freedom is under legal attack in the United States? He cited a few cases (some of the same ones used in scare-tactic ads from the now-discredited National Organization for Marriage) but none of them pertains to the rights of churches or private individuals (acting as private individuals) to create and maintain their own religious beliefs and practices.

... In his address, Oaks clarified that the major threat to religious freedom was actually “moral relativism.” But where some see the decadence of “moral relativism,” I see the advancement of religious pluralism and the erosion of a conservative religious prerogative to define public life.

Unfortunately, for some Californians these debates are not merely academic and have had real-world deleterious effects.  Time will tell if Humanists can keep these losses from mounting.

Prop. 8 and judicial oversight

The recent court decision overturning California's ban on same-sex marriage (proposition 8 on the last ballot) has raised the ire of many in the religious opposition.  Previous entries on this board have pointed out that the base of this thinking lies in religious intolerance masquerading as tolerance:  my religion dictates what you can and can't do, now respect my religion.  As a more legalistic argument, opponents are calling this ruling anti-democratic, since Prop. 8 did pass an election: 

Thus, a single district court judge cast aside current law, ignored precedent, and exalted his own secularist morality ahead of the moral judgment of a majority of voters in the most populous state in the union.

But the role of the judiciary in protecting minorities from the majority is well-established.  And the religious have benefited from this as well.  In 1940 the Supreme Court ruled that Jehovah's Witnesses expelled from schools for refusing to pledge allegiance to the flag were out of luck and would have to seek remedy in elections by changing the law.  But the Court reversed this in 1943 (in the middle of WWII), ruling that a minority could expect protection under the law.  And, of course, the Mormons faced persecution in the nineteenth century for their beliefs about subjects including marriage.  They were not protected by the courts, for which there is still bitterness. 

On the subject, a group member writes:

Yes, opponents of gay marriage often cite the fact that a majority of the citizens of various states have voted for a ban against it, and that, in their view, no "activist judge" has the right to overturn the will of the people.

What ignorance of the Constitution. The judicial branch was designed to serve as a protector of individual and minority rights. Our judges, especially the appellate and supreme courts, are supposed to review laws passed by the people's representatives in Congress, and, among other things, decide whether these laws violate the basic principles of our supreme law, the Constitution. That is their primary function.

In any elementary course on American government we teach that the legislative branch makes our laws, the executive branch makes sure they are carried out (executes them), and the judicial branch interprets our laws. Why do we need judges in the first place? Because the law is complicated, and needs experts to examine it carefully and to interpret it in light of the Constitution. If all we need to determine what is legal is to hold a referendum of popular opinion, why have a Constitution at all? Why have judges?

Judges are supposed to be independent in order that they be impartial. That's why federal judges are appointed for life: so they won't have to fear for their jobs if they make decisions that are constitutionally sound but unpopular, and they won't be badgered out of office by the rule of the mob.

One of the worst things that has happened to the judiciary in the U.S. is that in many state systems judges are elected rather than appointed. The Constitution originally intended for the legislative branch to be responsive to public opinion, but for the judicial branch to be impervious to it. When state and local judges are elected by the majority they tend to promise to be "tough on crime," because that's what the public wants to hear, and to make fewer and fewer unpopular decisions based on principles of fairness, understanding, wisdom, and discernment.

Unfortunately, these finer points of law -- that are not difficult to understand; they can be taught in a single one-hour class -- are beyond the comprehension of most of our native-born citizens, who are largely ignorant of our democratic process, and who would never be able to pass the test on U.S. Government that we require of our naturalized citizens.

Prop. 8 and religious beliefs in society

A judge has ruled that California's Proposition 8, which banned same-sex marriage, is unconstitutional.  And he did so using arguments that are familiar to humanists:

“The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples,” Walker wrote. “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.”

Humanists seek an earthly (and therefore arguable) motivation for positions on important issues.  There may be a non-religious argument against same-sex marriage, but as the judge explained, the points presented boil down to belief in revealed truth.  

Why are humanists uncomfortable with strong religious, private beliefs in others?  Because there are too many cases in which those beliefs do not remain private, and this is one.  Since many people in this state hold a certain religious belief, others must have their lives significantly affected:

Alliance Defense Fund attorney Daniel Blomberg, similarly, called the judge’s decision “pretty shocking” because the trial is not only about marriage but about the “fundamental freedom of having your vote count and having the liberty to express and live by your religious beliefs.”