A ‘Religious Foundation’ for Law

Lynn Bartels wrote an interesting article for today’s Rocky Mountain News that begins, “A lesbian couple wants to overturn a voter-approved ballot measure that defines marriage in Colorado as the union of one man and one woman.”

Here, I am not so much interested in whether the measure should be overturned by the courts, but rather in what sort of arguments people are making on both sides. Here is the basic debate, as summarized by Bartels:

The lawsuit claims Amendment 43, which 56 percent of voters approved in 2006, is unconstitutional on several grounds, including it was “religiously motivated” and has the effect “of establishing religion.”

Rep. Kevin Lundberg, R-Berthoud, who helped put the amendment on the ballot, laughed at that argument.

“If that’s the case,” he said, “we can throw out most of our laws because most are based on some moral perspective, and you could argue that is a religious foundation.”

“We could even throw in the Declaration of Independence on those grounds: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights… Creator.”

I have heard Lundberg’s basic argument many times before. The argument is that all laws have a moral foundation, and all moral truths have a divine origin, thus all laws have a religious base, and no law may be rejected merely because it has a religious base. Lundberg’s argument is complete nonsense.

It is true that all just laws have a moral foundation. However, it is not true that moral truths depend upon a god. Our right to life, liberty, and the pursuit of happiness does not depend upon the existence of a supernatural “Creator.” To take another example, murder laws are based on the immorality of unjustified killing; there are perfectly secular, non-religious, earth-bound reasons not to kill others (excepting cases of self-defense).

Various religions, on the other hand, offer a variety of “reasons” for killing others, along the lines that God said so. For example, Leviticus 20:13 advocates the murder of homosexuals: “If a man lies with a male as with a woman, both of them have committed an abomination; they shall be put to death, their blood is upon them” (the Oxford Revised Standard).

The distinction that Lundberg fails to make is that some laws have a solid secular moral foundation (regardless of whether they also match some religious code), while other laws have a strictly religious foundation. Laws that arise solely from religious beliefs should be repealed or overturned for precisely that reason.

The question, then, is whether Amendment 43 is basically grounded in religion, or whether it also has a serious secular foundation. That is, is the issue fundamentally separable from religion? If it is, then it should not be overturned based on the establishment clause.

This is not always an easy thing to figure out. For example, clearly the Blue Laws — prohibitions on select economic activity on Sundays — have a religious background historically. However, today nobody seriously supports those laws on religious grounds. Instead, arguments in favor of such laws are essentially protectionist in nature. Thus, while the Blue Laws should be repealed because they violate rights of contract and property, it’s not obvious that they should be overturned based on the establishment clause.

Clearly, Lundberg himself is strongly motivated by religion. For example, he endorses Mike Huckabee for president because Huckabee’s “faith and principles guide his every step.” Given that Lundberg endorses the idea of religious faith guiding a politician’s every step, mightn’t we conclude that Lundberg’s opposition to gay marriage (or partnership) is religiously motivated?

I looked up an old article about Amendment 43, and it too suggests a strong religious motivation for the measure:

Push to nix gay nuptials begins
But groups not all on same page — Focus on the Family and others disagree on whether a state amendment should ban civil unions too.
The Denver Post, December 9, 2005
Eric Gorski

What was envisioned as a broad coalition coming together to put a constitutional amendment prohibiting gay marriage on the Colorado ballot next fall is divided over what exactly the measure should say.

According to sources involved in the discussions, the influential Colorado Springs evangelical Christian group Focus on the Family is pressing for a measure that would ban not only gay marriage but also same-sex civil unions or domestic partnerships.

But other potential backers of an amendment — including the state’s three Roman Catholic bishops — prefer a narrower, potentially less divisive ballot measure that would simply define marriage as between one man and one woman, sources said.

Another key player, the Rev. Ted Haggard of Colorado Springs, president of the National Association of Evangelicals, said Thursday that he stands with the Catholic position.

He said the institution of marriage deserves constitutional protection and that civil unions are a matter for the state legislature.

The fact that Haggard was later discovered to have purchased illegal drugs and various services from a male prostitute does not change the fact that that Amendment 43 was religiously motivated.

However, I’m not convinced that Amendment 43 violates the establishment clause, as there may be some plausible non-religious arguments in favor of it. If it’s true that Amendment 43 allows for “domestic partnerships” — an equivalent of the marriage contract for gay couples — then that strikes me as a reasonable alternative that should be pursued through the legislature. The courts are not always the answer to religiously-motivated bigotry against homosexuals.