The Constitutional Principle: Separation of Church and State
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Same Sex Marriage, Separation of Church And State

For your convenience in researching this topic, we have assembled a variety of sources with a variety of ideas and thoughts.

Research by Jim Allison

Part I: Background

Same-sex Marriages (Ssm), Civil Unions &Amp; Domestic Partnerships

Same-sex marriage

Same-sex marriage

John Boswell, "Christianity, Social Tolerance and Homosexuality_,

Saint Paul, whose commitment to Jewish law had taken up most of his life, never suggested that there was any historical or legal reason to oppose homosexual behavior: if he did in fact object to it, it was purely on the basis of functional, contemporary moral standards.

There is evidence to suggest that Paul was Gay:

Rescuing the Bible from Fundamentalism, A Bishop Rethinks the Meaning of Scripture, by Bishop John Shelby Spong,

Harper SanFrancisco (A Division of Harper-Collins Publishers) (1991) pp 116-118, 119, 120, 125-26 to be of interest on this topic.

Four Books of Value on The Topic

Research unearths same-sex marriages blessed by church

By The Rev. Ron Pannell, Special to The Desert Sun, September 2, 2003

Christian attitude towards same sex unions may not always have been as "straight" as is now suggested

The following on early Christian same-sex marriages was posted in a newsgroup

From: (

Subject: Early Christian Same-Sex Marriages

Date: 1993-12-26 02:25:06 PST

Bob Morris, a volunteer with Hawaii's same sex marriage project, wrote a review for project volunteers of John Boswell's lecture to Integrity, Inc., General Convention of the Episcopal Church, July 6, 1988. John Boswell is Professor of European History at Yale and author of ``Christianity, Social Tolerance, and Homosexuality'' (University of Chicago Press, 1980). The lecture was an early preview of Professor Boswell's forthcoming book on the long history of Roman Catholic blessing of a variety of same-sex unions among which continues to be marriage. Please contact your local chapters of Integrity or of Dignity (Roman Catholics) to find a video-taped copy of the 1988 lecture (or visit the marriage project in Honolulu!). Here's a paraphrase of Morris' review:

For almost 1,500 years, starting as early as the 4th century, the sacrament of same-sex marriage was recognized and celebrated by the Catholic Church. In fact, such marriages were performed in churches according to a written liturgy LONG BEFORE opposite-sex marriages were performed in churches, and are still performed today in some areas.

In a forthcoming book, Professor John Boswell will explain numerous liturgical texts which describe sacramental marriage ceremonies for same-sex couples. These were marriages in every sense: social, legal, spiritual, and physical.

When Marriage Between Gays Was by Rite

The editors of Sexual Orientation And The Law ponted out:

"The sin conception of same-sex sexual activity prevailed in the colonies and in the United States before the late 19th century.(7) During this period, the modern concept of heterosexuality and homosexuality did not exist,(8) rather, almost all non procreative or non-marital sexual activities were considered immoral and made criminal.(9) Yet those who transgressed the society's sexual moral code were not stigmatized as long as they repented.(10) Furthermore, sharp distinctions were not drawn between same-sex sexual activity and other forms of sin; rather sodomy represented a capacity for sin inherent in everyone.(11) This conception of all non marital or non procreative sexual acts as sinful is reflective of the largely homogeneous society in which the family was the basic economic and social unit. (12) The homogeneity of society also explains the absence of distinction between homosexual and heterosexual sexual orientation. The idea that some members of a community might be different and have different sexual orientation was less intuitive in such a society than the contrary notion that all members of the community were equally capable of moral transgression. (13) The absence of a concept of sexual orientation is particularly vivid in 19th century society's treatment of relationships between women. During this time, deeply felt, intimate relationships between women were seen as normal and acceptable.(14) These relationships were both sensual and platonic,(15) they were never labeled as lesbian(16) but rather were seen as complementary to the woman's relationship with her husband and family.(17) Because men and women lived and worked in different spheres, relationships between women developed naturally."(18)


(7) See J. KATZ, GAY/LESBIAN ALMANAC 31-48 (1983).

(8) See D'Emilio, Making and Unmaking Minorities: The Tensions Between Gay Politics and History, 14 N.Y.U. REV. L. & SOC. CHANGE 915, 917 (1986); Goldstein, History, Homosexuality, and Political Values: Searching for the Hidden Determinants of Bowers v. Hardwick, 97 YALE L.J. 1073, 1087 (1988) The terms "homosexual" and "heterosexual" and the concepts behind them were not popular in the United States until the 1920's See J. KATZ, supra note 7, at 16.

(9) See J. KATZ, Supa note 7, at 29-65; Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. REV. 187, 199. However, sexual acts between two women were generally not criminalized because the laws only sought to deter "the unnatural spilling of seed, the biblical sin of Onan." J. DIEMILIO & E. FREEDMAN, INTIMATE MATTERS: A HISTORY OF SEXUALITY IN AMERICA 122 (1988); see also Law, supra, at 202 n75("The traditional common law and religious condemnation of homosexuality did not encompass women.").

(10) See J. D'EMILIO & E. FREEDMAN, supra note 9, at 15.

(11)D'Emilio, supra note 8, at 917.

(12)See Law, supra note 9, at 199.

(13) See id.

(14)See L. FADERMAN, Surpassing The Love of Men: Romantic Friendship And Love Between Women From The Renaissance to The Present 157 (1981); Smith-Rosenberg, The Female World of love and Ritual: Relations Between Women in Nineteenth-Century America, I SIGNS I, 9, 27 (1975); A. RICH, Vesuvius at Hornet The Power of Emily Dickinson, in on Lies, Secrets And Silence: Selected Prose 1966-1978, at 161-63 (1979).

(15) Smith-Rosenberg, supra note 14, at 4.

(16)Indeed, most people never imagined that relationships between two women could be sexual. See P. BLUMSTEIN & P. SCHWARTZ, AMERICAN COUPLES 40 (1983), see also Law, supra note 9, at 202 ("Lesbians Were censured by silence; sexual acts between two women were unimaginable."). This view was also a reflection of the common belief that women were asexual. See D. Greenberg, The Construction of Homosexuality 376-77 (1988).

(17) See P. BLUMSTEIN & P. SCHWARTZ, supra note 16, at 41, P. CONRAD & J.

Schneider, Deviance And Medicalization 173 (1980) (As long as women's behavior did not interfere with carrying, bearing, and rearing of children, it received comparatively little attention."); D. WEST, Homosexuality Re-examined 177 (1977) ("In male-dominated societies,... lesbian activities... seem to have been treated with an amused tolerance, so long as they did not interfere with masculine satisfactions.").

(18) See Smith-Rosenberg, supva note 14, at 9-13; L. FADERMAN, supra note 14, at 157-58

Source of Information:

Sexual Orientation And The Law, by the editors of the Harvard Law Review, Harvard University Press, Cambridge, Mass, London, England. (1989) pp 2-3)

Part II: The Issue

Banning Same-Sex Marriage Violates Church-State Separation

by Allen Snyder
March 15, 2004
First Published in Op Ed

The same-sex marriage debate currently raging is arguably deflecting a moth-like public's attention away from some of BushCo's more egregious failures like the mess in Iraq and the sagging, jobless economy, but it's nevertheless an issue being taken very seriously by both supporters and opponents. Some government officials, most notably in San Francisco and New Paltz, New York , are bucking trends, civilly disobeying, and marrying hundreds of gay couples. The state courts and legislatures are now involved and it looks to be a long and emotionally hyperbolic debate.

BushCo, the Christian Right, their Roll-O-Dex full of loyal fundamentalist hacks, flacks, and pundits, as well as other sundry neurotically homophobic ignoramuses are howling that when gays marry, it's certainly the end of all civilization as we know it. As a permanent solution to this plague of decadent and morbid love, caring, and commitment, some of your more backward states, like Kansas (they hate evolution, too), are furiously and fervently fast-tracking constitutional amendments banning same-sex marriages. There is even some high-minded talk on Capitol Hill of similarly amending the US Constitution, that same crazy document that accords equal rights and individual liberties (gasp!) to all Americans under the law.

Most gay marriage supporters rightly argue such an amendment ought to be soundly defeated, since it curtails rather than expands individual rights, something the US Constitution has never before done (fractions of black slaves notwithstanding).

Not really a good legal argument. A more fruitful strategy would be to argue the proposed amendment is prima facie unconstitutional; not because it writes blatant discrimination into the law, but because it violates the constitutionally recognized separation of church and state. The Christian right's disguising this issue as a moral and social one conveniently obscures its patently religious roots.

Consider. Opponents of gay marriage believe the amendment is necessary to protect marriage. More specifically, it will protect the sanctity of marriage. Well, what is sanctity anyway? What does it mean to sanctify a marriage or consider the practice itself as sanctified?

One look at any decent English dictionary quickly demonstrates that "sanctity" in every way, shape, form, tense, or variation, reeks of religious influence and connotation. Under "sanctification", Christianity is even mentioned specifically. Also found are references to the "sacred", the "Sabbath", "baptism", "holiness", and "piety". These are all readily recognizable contents of the true religious believer's bag of semantic mumbo-jumbo.

The proposed Constitutional amendment really amounts to little more than protecting a practice mostly religious people believe has some hallowed, sacred, ultra-special, and spiritually important place in their little God-created and directed grand scheme of things. Presumably, marriage is one of those human behaviors God has arbitrarily seen fit to rubber-stamp as a "right" or "moral" choice as long as it's a hetero marriage, that is. Homos, as we all know, are terrible sinners, for they all choose wrongly. God cannot abide by (or sanctify) their marriages. All in all, an illogical, but sadly effective, line of faith-based nonsense.

One could argue such an amendment, since it doesn't promote, favor, or establish any particular religion, does not constitute such a First Amendments violation. The establishment clause is widely interpreted as prohibiting the intervention of government in religious matters and vice versa. The sanctification of marriage is a strictly religious matter. While right thinking Americans don't want to see either included in the US Constitution, adding or including one of them, namely religion, is clearly forbidden.

The only way to avoid a church/state violation would be for amendment supporters to change course and argue the amendment protects something other than the sanctity of marriage. But if it doesn't protect marriage's sanctity, then it's unclear exactly what it does or would protect. Either way, amendment supporters face what, for their stunted intellects and narrowly bigoted minds, will be a monumental philosophical challenge.

Do they keep spewing spurious crap about how gay marriage degrades the institution while popular reality shows mock and disparage it on prime time TV and divorce is as trendy as ever, or do they join the rest of us in the 21st Century, leave behind their Neanderthal prejudices and antiquated ideas that homosexuality is a conscious life choice, somehow a function of our God-given free will?

Any amendment banning same-sex marriage is unconstitutional; not because it injects the Constitution with discrimination, but because it injects it with religion in the form of sanctity. So if and when this pitiful amendment comes before voters or undergoes serious judicial scrutiny, supporters can argue its unconstitutionality on First Amendment church/state separation grounds.

And when equal rights, personal liberty, and gay love inevitably win out, we can all remind the remaining fundamentalist homophobes and hate-mongers that another apropos derivation of the word "sanctity" is "sanctimonious".

Allen Snyder is an instructor of Philosophy and Ethics. He can be reached at This article is copyrighted by Allen Snyder and originally published by but permission is granted for reprint in print, email, blog, or web media so long as this credit is attached.

Marriage Amendment Violates Separation Of Church And State, Says Americans United

Thursday May 13, 2004

The Most Christian of Virtues

By Walter Cronkite, Journalist and Newscaster, 2/25/2004


The forthcoming presidential election will be decided on several issues of profound importance to the nation's future. It is unfortunate that the debates about them will be confounded by a religious issue that does not belong on the political agenda. The issue is same-sex marriage.

Same-sex Marriage: a Selective Bibliography of the Legal Literature [NEWEST VERSION]

Rutgers--the State University of New Jersey School of Law, Newark
Justice Henry Ackerson Library
Pathfinder Series

Church, State, and Gay Marriage

Outrage, Backlash as Vatican Focuses Worldwide Campaign on Gay Marriage

Same Sex Marriage Brief

March 3, 2003

Countries worldwide address gay marriage

Updated: 2004-03-05 09:02

Legalizing Gay Marriage: Critiques of the Ethical & Religious Arguments

Separation of Church and State 101: Issues, People, and Arguments

Religious Right FAQ

Evangelical Christianity & Homosexuality: Understanding the Relationship

Religion vs. Sexual Orientation: A Clash of Human Rights?

(Bertha Wilson Lecture, 2002)

Does gay-marriage debate raise church-state concerns?

Associated Baptist Press, August 12, 2003 - Volume: 03-75, By Robert Marus

Is There a Religious Difference Between Same-Sex Marriages and Civil Unions?

By Voices, Sunday, May 2, 2004; Page C13

Charges in Same-Sex Nuptials: N.Y. Clergy Protest, Vow to Wed More

By Alan Cooperman, Washington Post Staff Writer, Tuesday, March 16, 2004; Page A04

Separation Of Church And State: Let Religion Define Matrimony

By James Harold

Marriage Separation of Church and State

So you wanna know about Gay Marriage?: Learn some background on the issue

Hear some arguments against Gay Marriage

Hear some arguments for gay MarrIage

Gay Marriage Blurs Church, State Roles

By Kevin Lewis

Is gay marriage debate a church-state issue? - News

Christian Century, Sept 6, 2003 by Robert Marus

Separation of Church and State: A Most Important Decision

By Gerald A. Larue

Emeritus Professor of Biblical History and Archaeology University of Southern California

Part III: Related Issues

A Brief History of Marriage by Janet Thompson

The institution of marriage has had a long and sordid history. Not always referred to as marriage, which is a word from the 14th century French (marier) to marry, this sacred state had slipped through history under many guises and forms.

History of Marriage

History of Marriage


In 1967, the United States Supreme Court struck down the remaining interracial marriage laws across the country and declared that the "freedom to marry" belongs to all Americans. Loving v. Virginia, 388 U.S. 1, 12 (1967). The Court described marriage as one of our "vital personal rights" which is "essential to the orderly pursuit of happiness by a free people". Click here for the Loving v. Virginia decision.

Zablocki v. Redhail

In 1978, the United States Supreme Court declared marriage to be "of fundamental importance to all individuals". The court described marriage as "one of the 'basic civil rights of man'" and "the most important relation in life." The court also noted that "the right to marry is part of the fundamental 'right to privacy'" in the U.S. Constitution.

Baker v. Nelson

Considered by some to be "the first" same-sex marriage case, a gay male couple argued that the absence of sex-specific language in the Minnesota statute was evidence of the legislature's intent to authorize same-sex marriages. The couple also claimed that prohibiting them from marrying was a denial of their due process and equal protection rights under the Constitution. The court simply stated "we do not find support for [these arguments] in any decision of the United States Supreme Court."

Turner v. Safley

Over time, restrictions on marriage have become more and more suspect. IN 1987, the last time the Unites States Supreme Court considered the claim of a group of Americans about restriction on their right to marry, the Court articulated four attributes of marriage common to this group and all other Americans. These attributes are:

1. expression of emotional support and public commitment;

2. spiritual significance, and for some the exercise of a religious faith;

3. the expectation that for most, the marriage will be consummated; and

4. the receipt of tangible benefits, including government benefits and property rights.

Looking at these attributes of marriage, the Court decided that these Americans - incarcerated prisoners - shared with other Americans the freedom to marry. Because prisoners, too, can enter into a marriage with these characteristics, the Court invalidated Missouri's' virtually complete ban on marriages of prison inmates. Turner v. Safley, 482 U.S. 78, 94 (1987).

The history of marriage

On Marriage in "Recorded History"

An Open Letter to Massachusetts Gov. Mitt Romney

By Gary Leupp, Weekend Edition, December 13 / 14, 2003


But this is just not true, Governor. You invoke "History" as though it's some source of authority, but you really don't know much about it, do you? "No investigation, no right to speak," I always say, and if you want to talk about homosexual unions in recorded history you should do some study first. First I recommend you read John Boswell's fine book Christianity, Social Tolerance, and Homosexuality (University of Chicago Press, 1980), in which he documents legally recognized homosexual marriage in ancient Rome extending into the Christian period, and his Same-Sex Unions in Premodern Europe (Villard Books, 1994), in which he discusses Church-blessed same-sex unions and even an ancient Christian same-sex nuptial liturgy. Then check out my Male Colors: The Construction of Homosexuality in Tokugawa Japan (University of California Press, 1995) in which I describe the "brotherhood-bonds" between samurai males, involving written contracts and sometimes severe punishments for infidelity, in the seventeenth and eighteenth centuries. Check out the literature on the Azande of the southern Sudan, where for centuries warriors bonded, in all legitimacy, with "boy-wives." Or read Marjorie Topley's study of lesbian marriages in Guangdong, China into the early twentieth century. Check out Yale law professor William Eskridge's The Case for Same-Sex Marriage (1996), and other of this scholar's works, replete with many historical examples.

What the study of world history will really tell you, Governor, is that pretty much any kind of sexual behavior can become institutionalized somewhere, sometime. You know that polygamy remains normal and legal in many nations, as it was among your Mormon forebears in Utah. In Tibet, polyandry has a long history, and modern Chinese law seems powerless to prevent marriages between one women and two or three men. Getting back to same-sex issues, the Sambia of New Guinea have traditionally believed that for an adolescent boy to grow into a man, he absolutely must fellate an adult male and chug the semen down. I'm not making this up; see Gilbert H. Herdt, Guardians of the Flutes (Columbia University Press, 1981). Now you and I would see that as a kind of child abuse, but to the Sambians, it's just common sense. It's been that way for well over 3,000 years of their history. (You might want to ask yourself: does that 3,000 year record make it right?) Some ancient Greek tribes had a similar notion of the necessary reception of semen to make a boy a man, only with them it was an anal-routed process. (See works by Jan Bremmer, for starters, on this practice as an "initiation rite" among various Indo-European peoples.)

Alabama's Chief Justice Declares Homosexuality A Sin,' Bases Custody Ruling Partly on Bible
Americans United Says Moore's Church-State Views Echo Dark Ages

February 20, 2002

Alabama Supreme Court Chief Justice Roy Moore's reliance on religious rhetoric to decide a case pending before him has sparked sharp criticism from Americans United for Separation of Church and State.

Moore recently issued an opinion in a child-custody case calling homosexuality "a sin" that "violates both natural and revealed law." A portion of the ruling cites the biblical books of Genesis and Leviticus.

"It appears that Justice Moore is once again making his decisions on the basis of his personal religious beliefs, not the commands of the law," said the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State. "Justice Moore would make a great official of the Inquisition, but he doesn't belong on a state supreme court.

"I don't know what to expect next from Moore," continued Lynn. "Perhaps a witch burning?"

The decision in In Re: D.H. v. H.H. concerns a lesbian living in California who sued her ex-husband in Alabama to obtain custody of the couple's three minor children. The Alabama Supreme Court unanimously rejected the mother's case, and Moore wrote a separate concurring opinion blasting homosexuality on religious as well as legal grounds.

Among other things, Moore called homosexuality "an evil disfavored under the law," "an inherent evil," a "detestable and an abominable sin," and "an act so heinous that it defies one's ability to describe it."

Moore even suggested that execution is an appropriate penalty for gay people.

"The State," observed Moore, "carries the power of the sword, that is, the power to prohibit conduct with physical penalties, such as confinement and even execution. It must use that power to prevent the subversion of children toward this lifestyle, to not encourage a criminal lifestyle."

Tracing the history of laws banning homosexuality, Moore, in his Feb. 15 ruling, cites passages from the books of Genesis and Leviticus and favorably cites anti-sodomy laws in legal codes stretching back to the sixth century.

Moore writes, "No matter how much society appears to change, the law on this subject has remained steadfast from the earliest history of the law, and that law is and must be our law today. The common law designates homosexuality as an inherent evil, and if a person openly engages in such a practice, that fact alone would render him or her an unfit parent."

Lynn criticized Moore for using his office to promote a fundamentalist Christian agenda. He noted that Americans United is currently suing Moore in federal court, challenging his display of a two-ton Ten Commandments monument at the Supreme Court building in Montgomery.

"Moore apparently thinks we live in a theocracy, not a democracy," Lynn said. "This opinion is remarkably ignorant. It sounds like it was written in the Dark Ages, not the beginning of the 21st century."

Americans United is a religious liberty watchdog group based in Washington, D.C. Founded in 1947, the organization educates Americans about the importance of church-state separation in safeguarding religious freedom.

The Sensibilities of Our Forefathers: The History of Sodomy Laws in the United States

History of Sodomy Laws

Why Religious People Are Against Gay Marriage

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