Public Comment

The Church and State Equation in Proposition 8

By Michael Smith
Wednesday January 28, 2009 - 07:24:00 PM

As director of the Asylum Project at the East Bay Sanctuary, I see those who want to escape marriage and be free and those who want to be free to marry. We represent women who have fled forced marriage and wife inheritance—both sometimes including female circumcision—and domestic violence. Apart from the lack of love and the slavery aspects of forced marriage and wife inheritance, they can be death sentences in polygamous societies where AIDS is rampant. Domestic violence can be a long, slow death sentence, or a sudden one. We also represent clients who have suffered lifelong and truly horrible persecution on account of their sexual orientation. 

Many of our female clients who have fled forced marriages and domestic violence are religious and probably supported Proposition 8, the amendment to the California Constitution that would ban same-sex marriage. Our LGBT clients would like to marry, given the opportunity. 

Although not religious, I work with religious people and for a faith based organization, which perhaps gives me a unique perspective on Proposition 8. The more fundamentalist religious communities argue that it would be an intrusion of the state into religious affairs if same-sex marriages were legalized. And, at least in part, the anti-Prop. 8ers have argued that the proposition is a violation of the separation of church and state. 

That there is a separation of church and state is a comfortable myth we fall back on when we choose not to look at the reality of our society. Although it was never our forefathers’ (our foremothers were not consulted) intention to create a Christian nation, our forefathers, while advancing the principal of separation of church and state, were so blinded by tradition that they did not recognize all the ways that church influenced the affairs of state. Similarly, the Catholic kings failed to eliminate all Moorish influence from Spanish culture because they no longer recognized all that was Moorish. Only recently has our society achieved enough tolerance to include mosques and temples under the heading of church in the church and state equation. 

Islamic clerics (often simply pious Muslims), rabbis, preachers and priests, all undoubtedly religious, exercise the right to marry couples in religious ceremonies, and these marriages bring state benefits to the couples in the form of tax relief, property rights, child custody rights, visitation rights and inheritance benefits. In other words, this religious rite yields state benefits: undeniably an intrusion of religion into the civil arena. 

Buddhists, perhaps more concerned with spirituality than sexuality, generally believe that marriage is not a religious act, although monks can perform the ceremony. 

Pious Muslims, rabbis, preachers and priests perform many religious rites that are not recognized by the state and bring no civil benefits: naming ceremonies, coming of age rituals, and last rites (going out of age rituals). And religious actors, under civil law, cannot undo acts recognized by the state such as marriages, not even the marriages they performed. Divorce is solely a civil or state action, as is death, and religious actors cannot sign death certificates. Only state actors have that authority. 

Perhaps the solution to the battle over Proposition 8 is to truly separate church and state. Religious actors should be able to marry couples that meet their religious criteria, and those marriages should bring religious benefits but not state benefits. The state should marry couples that meet its criteria and those marriages should bring state benefits but not religious benefits. Those who want both religious and state benefits could have civil and religious ceremonies. If a religious person does not meet the qualifications to be married in his or her religion, she or he should consider changing his or her religion, in both senses of the phrase. 

Once we have truly separated church and state, all that’s left to fight over is a semantic question: marriage versus civil union. The church side wants intellectual property rights on the word marriage and the state side aren’t completely satisfied with the term civil union. This is a reflection of modern society in which we religiously believe that words can be owned. A compromise would be the use of a more complete description: “religious marriage” or “religious union,” and “civil marriage” or “civil union.” That way everybody gets to use the words they want, except those of us who are neither married nor unionized. 


Oakland resident Michael Smith is the director of the East Bay Sanctuary’s Asylum Project.