August 10, 2012 - LAW AND RELIGION FORUM

Helene Slessarev-Jamir (Claremont Lincoln University School of Theology) has posted Religious Conservatives’ Success in Constructing Gay Marriage as a Threat to Religious Liberties. Rather than posting the abstract, which you can see simply by clicking on the link, it may be more helpful to post some selections from this short but intensely felt paper. Those selections follow.

In this country, an exclusivist, patriarchal construction of religion has positioned itself as the principal crusader against the legalization of gay marriage by essentially claiming the gays and lesbians are not created in God’s image. Yet, the role of religion in the on-going debate is complexified by the gradual emergence of alternate, inclusive religious voices that publicly support gay marriage . . . .

Conservative religious strategists have won their campaigns against marriage equality by raising the specter of possible infringements against the religious liberties of those families, individuals, and institutions that oppose gay marriage were state governments to grant legal status to gay marriage. In the US, the defense of heterosexual couples’ religious liberties has become the principal trope in the campaigns against the right to same sex marriage, thereby legitimating the defense of traditional marriage by claiming that it is the embodiment of an ideal that many Americans perceive as sacrosanct. Thus, a vote to maintain discriminatory laws against same sex couples by denying them the right to marry is effectively recast as a patriotic defense of American liberty and freedom of belief, both of which are regarded as sacred values rooted in this nation’s founding principles . . . .

I have not read Alexander Tsesis’s new book about the Declaration of Independence. From this review by Jack Rakove, though, it appears that Professor Tsesis makes some “powerful moral claims” about the nature and scope of the “self-evident” “truth[]” “that all men are created equal.” I have always been struck by the powerful religious text grounding the various principles enunciated in the Declaration, but at a quick glance, it does not seem that Professor Tsesis makes very much of this (though perhaps there are portions of the book where this text is discussed). He does (again, according to Professor Rakove’s review) appear to advance the claim that the Constitution needs to be amended and updated to reflect a core egalitarian creed that he reads into the Declaration. Professor Rakove has this to say:

In short, Tsesis collapses into the Declaration a host of claims that text and context simply cannot support, assigning to it qualities and purposes it was not originally intended or understood to possess. His most basic misunderstanding goes to the great equality principle that Jefferson condensed into “all men are created equal.” Americans have long read that to mean that we are or should become equal to one another as citizens. That, in effect, is how we have democratized the Constitution since 1776—as Tsesis ably demonstrates. When inequalities are perceived and become objectionable, we cite the Declaration in support of our leveling claims. Often we do that not merely because the inequalities are unjust in themselves, but also because we believe that the Declaration instructs us to oppose them. But the intended meaning of 1776 was never about inequality within American society. It was instead a statement that Americans as a people, as a collective whole, were equally endowed with other peoples with the right to oppose tyranny, to “alter and abolish” unjust governments and establish new governments in their stead. This form of equality means little to us now, but in the revolutionary circumstances of 1776, that was the equality Americans needed to assert.