I've compared watching the Supreme Court to watching pro wrestling, with each side well-defined and the occasional errant opinion/folding chair to spice things up. But watching the Supreme Court is also a great history lesson in what we like to fight about as a nation.
This week's arguments on Proposition 8 and the Defense of Marriage Act (DOMA) received a lot of media attention, and Facebook turned into RedEqualSignBook, but almost nothing was said about the underlying historical conflicts that brought both of these cases to the country's highest court.
As most in Utah know, these two cases represent a fight between religion and secular government. While these cases aren't going to be decided on religious liberty grounds, religion is front and center.
DOMA was passed in 1996, according to the House Record, as a reflection of the collective moral judgment of that Legislature. Much of the campaigning for, and opposition to, same sex- marriage has also divided on these religious grounds.
The chief justice of the Supreme Court has written, "In the face of all this evidence, it is impossible to believe that the constitutional guaranty . . . was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract and usually regulated by law."
Sound familiar? It was the chief justice of the Supreme Court writing in 1878 in Reynolds v. United States, outlawing any constitutional protections for polygamous marriage under the First Amendment.
The dispute over religious intrusion into secular government is as old as the American Republic. The Reynolds decision has an excellent history of the incursion into the government that religion had made in the colonies prior to the adoption of the Constitution.
Religion was being taught in schools. Taxes were assessed for the benefit of the religious majority. Worship was mandated by law.
At the time, Thomas Jefferson was in France and was dismayed that freedom of religion had been left out of the Constitution. It had to be inserted later through the amendments we now know as the Bill of Rights.
Yet, the tension continued. An 1833 Supreme Court ruling declared that the Bill of Rights only applied to the federal government, not the states. As a result, blasphemy prosecutions continued in some states as late as 1886.
Our own state's history shows the tenuous constitutional guarantee of religious freedom. The migration of the Mormon pioneers came about in part because of religious persecution and active governmental interference. In October 1838, the governor of Missouri, in an executive order, declared war on the Mormon settlers and pushed them out of Missouri into Illinois.
The executive order was repealed on June 25, 1976, because, besides being a bad idea, the Extermination Order was unconstitutional.
Of all the religious institutions incorporated into our laws, marriage has proven to be one of the most changeable. The original religious beliefs incorporated into the law dissolved the rights of the woman into her husband. In 1848, New York passed the first state law granting married women property rights, and women began their ascent to a legally equal partner in marriage.
In the debate this week before the court, Justice Antonin Scalia asked attorney Theodore Olson when same-sex marriage became unconstitutional.
Olson retorted with a question of his own: "When did it become unconstitutional to prohibit interracial marriages?"
Scalia's answered by saying when the 14th Amendment passed, a constitutionally correct, but historically wrong, answer. Even though by Scalia's admission, interracial marriage was constitutionally protected as of 1868, the reality is, interracial marriage didn't practically receive its constitutional protection until 1967 when the Supreme Court overturned miscegenation (interracial marriage) laws in Loving v. Virginia.
My own whimsical inclination is to get the government out of the marriage business and leave marriage to the religions. The stability of domestic partnerships has proven beneficial to our societies. The economic and child-rearing aspects of those partnerships should be legally regulated and protected.
But our country's history shows that people get hurt when belief intrudes on our laws, from the expulsion of religious believers, the prosecution of heretics to the denial of the ability to choose a life partner. The legal pain of exclusion is easily felt when you are on the wrong side of the law.
A key historical question underlying this week's debate was whether religious belief can be sustained without government sanction. Maybe, more than 200 years later, we should take Jefferson's advice and finally start keeping government and religion separate.
E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or firstname.lastname@example.org.