Geoffrey R. Stone writes on the separation of church and state in The Huffington Post:
But here’s the rub: From a strictly legal perspective, it is next to impossible for courts to enforce the separation of church and state in the context of laws like Proposition 8. When a law does not directly restrict religious activity or expressly endorse religious expression, it is exceedingly difficult for courts to sort out the “real” motivations behind the law. As a consequence, courts are loath to invalidate laws on the ground that they enact a particular religious faith.
This does not end the inquiry, however. Courts also have difficulty in dealing with laws that do not expressly discriminate on the basis of race or religion or gender, but that were motivated by racial, religious or gender prejudice. But we know – as an essential part of our national character – that we as citizens should not support laws because they advance our discriminatory biases about race, religion, and gender. We know that it is un-American for us to enact laws because they implement our prejudices. We know that it is our responsibility to be tolerant, self-critical and introspective about our own values and beliefs and to strive to achieve our highest national aspirations.
The separation of church and state is one of those aspirations. Indeed, regardless of whether courts can intervene in this context, it is as un-American to violate the separation of church and state by using the power of the state to impose our religious beliefs on others as it is to use the power of the state to impose our discriminatory views of race, religion or gender on others.
This is the fundamental point that the religious advocates of Proposition 8 fail to comprehend. Like other citizens, they are free in our society to support laws because they believe those laws serve legitimate ends, including such values as tradition, general conceptions of morality, and family stability. But they are not free – not if they are to act as faithful American citizens – to impose their religious views on others. That is, quite simply, un-American.
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