A Queer Reading of the Constitution: Church, State, and Gay Rights

Mike Huckabee has stirred national attention by speaking in favor of a constitutional amendment to ban gay marriages. The campaign trail is not where we will find this issue calmly analyzed. But I offer some historical perspective that may show the potato handed to us isn’t too hot to handle.

Those engaged on both sides of the current debate over the issue of separation of church and state in America like to quote the Constitution or refer to the Founding Generation to support their opposite positions. In taking opposite stances on interpreting the Constitution, both sides cannot be right. This should be the first clue to the possibility that some twisting of history to suit politics is occurring. Good history can easily straighten this out, but we can get ourselves turned in the right direction by a little common sense analysis first.

The proponents of “separation” go to the First Amendment as their mantra. But they have to take a statement of restraint (Congress shall not establish religion nor impede its free exercise) and pump it up to sound like a proclamation of principle. If anything, this clause simply proclaims a middle ground. It is a statement of protocol. If the authors of the amendment meant elimination of religion from the public square they would likely have actually used the word “separation.” The burden of proof for reading the amendment as imposing a wall of separation lies with those who argue this interpretation. The clause itself does not make the point. We need to call on history to help out here. But first, a look at the other side.

The opponents of “separation” say we began as a Christian nation, and our founding documents ring with the sentiments of our predominantly religious leaders. There is usually some confusion on this side as to where these ringing statements occur in the documents and which of our Fathers were examples of evangelical teachings. Unquestionably, our heritage is infused with religion, and of the Christian brand, but our early lawmakers were intent on making a framework for government that would meet civil needs and pass the test of time. If they were as good as we think they were at their task, we should not expect them to have periodized the Constitution or to have indoctrinized it. Again history can help us out here.

Actually the stand of our Founding Generation on the separation question is different than either side of the current debate imagines. For our Founders, separation of church and state did not mean bending backwards to eliminate religion from the public square. What they meant was that church and state each has its separate realm, but each needs the other--in other words church and state are on separate missions, but function in the same arena. This would explain why the First Amendment is phrased as mediation rather than elimination.

We don’t need to line up the folk of that time and count the number who spoke for or against religion. Unlike now, even most of the non-religious of that time acknowledged a God (of some kind), so a quote count proves little. The population in the colonies was not divided about the importance of religion. There was a consensus that religion is important. Indeed they felt that the prosperity and health of the state depends on religion’s active presence. But because piety is personal, the national leaders were determined that the state not define it. They felt that church and state have the same goals in America and should cooperate in achieving them. The success of one is critical to the success of the other. This theme was repeated over and over by the leading figures of our new nation. That generation felt strongly, and expressed widely, that the new democratic experiment would not succeed unless founded upon a virtuous citizenry. By virtuous they meant religious, but without specifying what kind of “religious.” And they were insistent (hence the First Amendment) that the kind of religion be unspecified by government.

The problem lies in how to work this out. Our task today is to approach this responsibly in dealing with our generation’s particular social and moral concerns. Making the Constitution a tool for moral reform is as appropriate and effective as throwing a textbook at a child as a way to teach him how to behave. Rules do not induce morality.

Today we are embroiled in questions of how to treat homosexuality in the public arena. Even if a ban on gay marriages were made a law of the land, it would not end homosexuality nor stop gay partnerships. But it would violate individual citizen rights, which is what the Constitution and Bill of Rights is all about. If homosexuality is immoral, it should be dealt with by the church community, which is the only instrument that could do anything about it anyway.

Historically, anytime the state gets involved in supporting church positions, the church is hurt. The Gospel has never been strengthened by any government, nor does it need state help. State help should be considered repugnant by the church. Look at what happened to Christianity after the Roman Empire adopted Christianity as the state religion. A closer example is Massachusetts. When this state got around to disestablishing the Congregational church within its borders, which meant that taxes would no longer be used to support minister’s salaries, Lyman Beecher, the most prominent preacher of the time, protested loudly. What happened to the church when this connection was severed? It gained life.

The church and its people benefit from a sane and orderly society run by officials with integrity, but integrity is not promoted by government--it is promoted by family and church values. Government and legislation are rules and formulas, which are inanimate until implemented by officials. The kind of people in office determine the kind of rule that reigns. As our Founders knew, it is the church’s role to promote the moral character of the people, and if it can’t do this without the help of the state, we all are in trouble. When the church looks to the state to do the job for it, by parsing the rules, it is leaning on a rubber crutch. In leaving the task to periodized legislation, there is too much risk that unwise or unspiritual “Christians” will jeopardize American principles in the name of their personal prejudices.

Let the Constitution deal with the sound democratic principles for which our ancestors fought, without making it a compendium of detailed instructions. And simultaneously let the church rally to do its job with the power in which it specializes. For the church to ask the government to resolve the gay marriage problem will guarantee that it will clumsily step on the “principle” of individual rights. Let’s not damage the “rights” question by putting the wrong institution in charge of morality. To not pass a gay rights amendment will both assure that democracy prevails, and will force the church to step forward and clarify an issue that is in its domain to handle. For the church to support a gay rights amendment to the Constitution is a cop-out.

Let’s consider the suggested solution that aligns with this. Take “marriage” out of state hands. We need “licensing” of social behavior in a lot of areas for non-religious reasons (liquor licenses, drivers’ licenses, gun licenses). Let’s stamp lifestyle partnerships with the official title of “civil unions.” This would guarantee civil rights and equal benefits under law, and give the churches the exclusive role of sanctifying partnerships (or not) by granting the imprimatur of “marriage.” This should make it clear to everyone where “rights” and “morality” stem from, and the two domains would not have to fight each other.

I think Ben Franklin would approve. He holds a position in history as a Founding Father who, by strict standards, was “amoral” in his private life, while publicly promoting religious sentiments. He embraced a way to promote enlightened governing principles that protected individual rights while simultaneously assuring that religion would be free to work on heart matters. Why can’t we do the same? It is not surprising that those who pretend that Franklin was a special friend of evangelical Christianity, are often the same ones who would tamper with the Constitution that he was so crucial in getting implemented.

A better reading of the First Amendment is to see it as an attempt to honor all religions, allowing each variation an equal place in society to give its unique salve and substance to our democratic experiment. The Founding generation understood the difference between separation of church and state and cooperative separation. We could learn from them.

Doug Good