Tag Archives: First Amendment


In a comment a couple of days ago, Sharon referenced a truly appalling situation in Floyd County, Indiana. She’d received a request for a donation from the Indiana Sheriff’s Association. The newsletter accompanying the request profiled a program instituted by the sheriff of Floyd County: Residents Encountering Christ. The newsletter described a 3 day retreat, reporting that Sheriff Bush “went in and talked to inmates, sharing his faith and encouraging them in theirs. In all, 41 inmates were baptized during this event. Local news media took note of the program’s success.”

As Sharon wrote, “I’m not sure which I find more appalling, that a law enforcement officer uses his position of power to proselytize to inmates or that local ‘journalists’ consider baptisms achieved under these conditions to be  ‘a success.'”

I am equally appalled.

Law enforcement officers assume an obligation to abide by the Constitution. There is a very lengthy string of  legal precedents confirming the lawlessness–and cluelessness– of Sheriff Bush’s behavior. 

That cluelessness extended to the news coverage.According to the local News and Tribune (paywall),

On July 24th, 41 Inmates at the Floyd County Jail that volunteered to take part in Residents Encounter Christ (REC) were baptized. What a powerful moment to witness! 

One has to be truly naive–or blissfully unaware of the reality of power relationships–to believe that inmates “volunteered.” (As numerous women can attest, when someone with authority to make your life miserable “requests” some “accommodation,” it’s hard to refuse.) 

There is absolutely no legal argument supporting Sheriff Bush’s appalling conduct. Numerous Supreme Court opinions have echoed Justice Black’s words in Engel v. Vitale:

The constitutional prohibition against laws respecting an establishment of religion must at least mean that, in this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.

That case considered the constitutionality of a rule promulgated by the New York State Board of Regents, authorizing public schools to hold a short, “voluntary” prayer at the beginning of each school day. The Court held that state laws permitting prayer “must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs.”

It is true–and very troubling–that the current Supreme Court has eroded previous First Amendment jurisprudence. But even those regrettable decisions don’t come close to making Sheriff Bush’s activities permissible. Perhaps someone should share these paragraphs from Justice Black’s decision with the Sheriff.

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power.

The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people, rather than in the hands of any monarch. But this safeguard was not enough. Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say – that the people’s religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment’s prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.

Sponsorship of religious activity by a government official is unconstitutional.

Floyd County has a Sheriff who is either ignorant of the Constitution or willing to ignore it. In either case, he’s unfit for public office.



Charters Aren’t Vouchers

The media recently reported the results of a recent study of schools in Indiana and other states, and found that children attending public charter schools had better learning outcomes than those in traditional public schools or voucher schools.

When I saw the headlines, I cringed–not because of the study’s findings, which seem credible, but because I’d be willing to bet that nine out of ten people reading those reports don’t understand the difference between charter schools and voucher schools–and it’s a critical difference.

Charter schools are independently run public schools that are granted greater flexibility in their operations than traditional public schools. (Theoretically, at least, that flexibility is in exchange for greater accountability for performance.) In the Indianapolis Public School system, leaders at these schools have independent control of policies and academics while still being part of the public school district. 

Because they are public schools, charters are not allowed to charge tuition. They are not allowed to teach or favor any religion. And importantly, since charter schools are public schools, they are constrained by the Constitution and Bill of Rights, and prohibited from discriminating on the basis of race, sex, gender, socioeconomic status, previous academic scores, or special education status.

Vouchers–as I have explained repeatedly on this site–are very different. Voucher programs send public money–tax dollars– to private schools to offset the tuition charged by those schools. A vast majority of the private schools that accept vouchers are religious, and a vast majority of students employing those vouchers use them to attend religious schools. Furthermore, virtually all of those voucher schools discriminate on some basis–either limiting enrollment to members of a particular faith, excluding students with special needs, or–in several high-profile situations–excluding gay children, or children with gay parents. 

There are problems with charter schools, particularly with those that have contracted with for-profit entities to manage them, but those problems differ substantially from the issues presented by voucher programs. Vouchers weren’t developed in an effort to improve education; they were meant to be “work-arounds.” The First Amendment, along with many state constitutions, prohibits the use of public funds to support religion or religious institutions. Voucher proponents argued that the millions of tax dollars going into the coffers of religious schools are “really” going to the parents, and that the parents are individual citizens who should be free to spend those dollars to send their children to the school of their choice. (And I have a bridge to sell you…)

Courts bought that argument.

The study found that students who attended charters  in Indianapolis had somewhat stronger educational outcomes than those in either traditional public schools, or in IPS “innovation” schools, which are a different type of charter. (Numerous studies have found that children attending voucher schools do no better–and often do more poorly–than similar children attending traditional public schools.)

Indianapolis students in poverty who attend charter schools showed stronger academic growth in math and similar growth in reading compared to the state average, according to the study. 

CREDO’s own metric for comparison also found that students at Indianapolis charter schools gained more days of learning in math and reading during a typical academic year than similar students at traditional IPS district schools and innovation charter schools within the district. Other comparisons in the study include:

Black and Hispanic students at charter schools had stronger academic growth in math and reading compared to Black and Hispanic peers at district schools. No significant difference in learning gains were found between the same student groups in innovation charter schools compared to district schools.

Students in poverty at charter schools had more learning gains in math and reading compared to their peers at district schools. No significant difference in learning gains were found between the same student group in innovation charter schools compared to district schools.

No matter what type of school English Language Learners in Indianapolis attend from the study, they show similar learning gains in reading and math.

The theory behind charter schools was that their greater flexibility would allow them to experiment with curricula and other aspects of the educational environment, and that successful experimentation could then be “imported” into the traditional public schools. According to the linked article, that is precisely the approach being taken by the IPS Superintendent.

I do welcome the study–and for that matter, all evidence of what works and what doesn’t– but I’d be a lot more enthusiastic if i wasn’t convinced that it will be intentionally mischaracterized to support voucher proponents’ efforts to defame and de-fund our public schools….



What Is Government For?

As readers of this blog know, I spent 21+ years teaching Law and Public Policy, mostly to students intending to go into either public management or the nonprofit sector. The faculty of our school was heavily engaged in imparting skills–budgeting, planning, human resource management, policy analysis.. But my classes tended to be different, because these practical subjects didn’t emerge from a void; they are inextricably bound up with our constitutional system, and that system in turn is the outgrowth of great philosophical debates about the proper ordering of human communities. 

The great questions of political theory involve the nature of government. What should government do? What actions by the state are legitimate? What is justice? What is public virtue? 

The American experiment was heavily influenced by the philosophy of the Enlightenment and emerging theories about the proper role of the state, especially the principle that Individuals are entitled to live their lives as they see fit, until and unless they are thereby harming the person or property of another, and so long as they are willing to extend an equal liberty to others.

The primary role of government so conceived is to prevent some citizens from harming others. (Granted, there are inevitable arguments about what constitutes harm to others, and what degree of harm is needed to justify governmental intervention.) 

The Bill of Rights expressly limits the ability of government to regulate activities that are purely personal. What we read, whether we pray, our politics and beliefs and life goals are matters for individual decision.

It is that basic American principle of governance that is now at issue.

The decision in Dobbs wasn’t simply about abortion; it attacked a jurisprudence that had become increasingly protective of maintaining that line between individual rights and the legitimate exercise of government authority.

What too many Americans fail to understand is that the question posed by Dobbs isn’t whether a woman should or should not abort. It’s also whether citizen A should be able to marry someone of the same gender, or whether citizen B should bow her head and participate in a public prayer.

The issue is: who gets to make such decisions?

We are properly concerned these days about the functioning of democracy, and whether our lawmakers are reflecting the will of their constituents when they vote on the numerous matters that government must decide. But the arguably radical Justices on today’s Supreme Court have raised a more fundamental issue, because the Justices are authorizing government to legislate matters that government in our system is not supposed to decide.

The Bill of Rights draws a line between state power and individual rights. Legislators don’t get to vote on your fundamental rights: to free speech,  to pray to the God of your choice (or not), to read books of your own choosing, to be free of arbitrary searches and seizures, to cast votes in elections…

Even when lawmakers are reflecting the will of the majority, in our constitutional system they don’t get to deprive people of fundamental rights.

Ever since Griswold v. Connecticut, in 1965, the United States Supreme Court has acknowledged that personal autonomy–the  individual’s right to make “intimate” personal decisions–is one of those fundamental rights. The doctrine of substantive due process, often called the right to privacy, is shorthand for the recognition that in a free society, certain decisions are not properly made by government. The doctrine answers the question “Who decides?” by drawing a line between the myriad issues appropriate for resolution by majorities acting through government, and decisions  that government in a free society has no business making.

As I’ve argued before, the ruling in Dobbs didn’t simply mischaracterize history in order to impose a minority religious belief on all Americans. It attacked the rule that restrains government’s intrusion into all aspects of our private lives. Its “reasoning” would allow other fundamental rights–to bodily autonomy, to the choice of a marriage partner, to decisions about procreation– to be decided by legislatures chosen by “democratic” majorities.

Unless you are prepared to argue that an individual’s right to make those very personal decisions is not a fundamental constitutional right, allowing abortion and contraception and same-sex marriage to be decided by government is no different from giving lawmakers the right to dictate my choice of reading material, or your choice of religion.

The issue isn’t what book you choose–it’s your right to choose it. It isn’t whether you’ll marry person X or Y, it’s your right to choose your marriage partner. And it isn’t whether you abort or give birth–it’s about who has the right to make that decision.

Government paves streets, issues currency, imposes taxes…it has plenty to do without upending America’s foundational philosophy.

The Conundrum

In a discussion the other day with a friend and former legal colleague, we recalled the mantra of the law firm with which we’d once practiced: there is only one legal question, and it’s “what do we do?” What course of action do we advise the client to pursue?

I think about that mantra a lot these days, and most frequently in connection with the media.

I’m convinced that so many of the problems that bedevil American society today are exacerbated by a media landscape that is wildly fragmented. Not only are numerous media outlets–credible and not-so-credible– nakedly partisan, but thanks to the internet, they are all immediately accessible to citizens looking for “news” that confirms their world-views.

Partisan news organizations are nothing new–if you don’t believe me, read up on the vicious contemporaneous attacks on “ungodly” Thomas Jefferson. What is new is the sheer number of media outlets and the ease of accessing them.

The problem isn’t confined to out-and-out propaganda mills. Dubious stories from slanted outlets can and do get picked up by credible news organizations, and its a truism that later “corrections” are seldom as widely read as the initial misinformation.

Josh Marshall at Talking Points Memo recently reported on an example: the New York Post had run a “made-for-Fox News story” about veterans who, it reported, had been “booted out of hotels about an hour north of New York City to make way for migrants”.

As I said, it was a made-for-Fox News: Here are these disabled or impoverished American veterans getting kicked to the curb to make way for migrants with no permission to be in the country in the first place. Politicians jumped on the story. The Post ran it. It made the rounds of the wingnutosphere. Fox of course got on board.

But none of it was true. And I don’t just mean not true in the sense of being misleading or incomplete or embellished or sensationalized. It was a hoax. Sharon Toney-Finch, the founder and head of a small local nonprofit, the YIT Foundation, which focuses on veterans issue and premature births (?) was the source of the original story. But it turns out the she recruited a group of 15 homeless men from a local shelter to impersonate veterans and talk to the press about their tale of woe.

After a few of the homeless men admitted the truth to reporters, Toney-Finch confessed she’d made the whole thing up.

The hoax was apparently perpetrated with the aim of creating a media spectacle for  the right-wing press–to focus on the Biden administration’s terrible, awful, no-good  approach to immigration, and  the purported national immigration crisis. Even the Post has now been forced to recant and report on Toney-Finch’s hoax.

A local paper, The Mid-Hudson News, uncovered the truth with what Marshall notes was “a lot of shoe-leather reporting.”

This relatively minor story is a microcosm of our current dilemma. Today’s media environment is a Wild West of propaganda, spin, misinformation and outright lies. Along with the partisans peddling that propaganda and those lies are genuine reporters working for outlets that practice old-fashioned “shoe leather” journalism. And protecting them all are the Free Speech provisions of the First Amendment.

So–what do we do?

What we clearly cannot and should not do is eliminate or constrict those First Amendment protections. The result of that would be to hand over to government the power to censor communications.

In some cases, like the recent Dominion lawsuit against Fox, libel law can be employed to punish the most egregious behaviors, but this is a very slim reed: few of those who’ve been libeled have the means to bring such suits, and they are–quite properly–very difficult to win.

Unfortunately, new rules that would make it easier to sue over misinformation would end up constraining real journalists as well as the sloppy or dishonest ones–when you are creating the “first draft of history,” it can be easy for even good reporters to make mistakes, not to mention that in the multiple gray areas of modern life, one person’s truth is another person’s lie.

The only answer I can come up with is better education and a change in the information culture–both long-term projects. Teaching critical thinking and media literacy in the schools–although highly unlikely in those fundamentalist religious schools to which our legislature sends our tax dollars–would help. Organizations like the Society of Professional Journalists that issue codes of ethics might consider “rating” outlets based upon their observance of those ethical standards.

But as long as individuals can search for and locate “facts” they find congenial, Americans will continue to inhabit alternate realities. I just don’t have an answer to “what do we do?”

About That Wall Of Separation

According to the New York Times, Eric Adams, current Mayor of New York City, opened a recent talk with an old chestnut:“When we took prayers out of schools, guns came into schools.” Not only is that presumed cause-and-effect demonstrably false, Adam’s speech–in which he dismissed separation of church and state–betrayed an appalling lack of constitutional knowledge (and provoked enormous criticism).

Back in 2004, I posted “Why Separation is Good for Church and Necessary for State.” It seems appropriate to repeat that explanation, and remind ourselves that religious “culture war” issues were already hot some twenty years ago. (Warning: this was originally a speech, so it’s longer than my usual daily post.)


I’ll start with James Madison, my favorite Founder and the one whose views on religious liberty dominated the Constitutional Convention. Madison based his understanding of natural rights and the role of the state on Locke’s social compact. As one scholar has noted, because the exercise of religion requires that each person follow his own conscience, it is a particular kind of natural right, an inalienable natural right. Since opinions and beliefs can be shaped only by individual consideration of evidence that that particular individual finds persuasive, no one can really impose opinions on any one else. Unlike property, or even speech, religious liberty cannot be sold, or alienated, so it does not become part of the social compact. The state must remain noncognizant of its citizens’ religions–meaning that it simply has no jurisdiction over religion. A just state must be blind to religion. It can’t use religion to classify citizens, and it can neither privilege nor penalize citizens on account of religion.

If you listen to the rhetoric around church-state issues today, you would never know that the “wall of separation” contemplated by Jefferson and Madison was seen as an important protection for both religion and government. But it was—and for some very sound reasons. 

This view of Madison’s is a far cry from the interpretation favored by some of our current Justices—an interpretation sometimes called “nonpreferentialism.”

Roger Williams, who founded Rhode Island, is most often cited for the religious view of the importance of separation; he was the originator of the phrase “a wall of separation”—a full 150 years before Thomas Jefferson used it. Historians sometimes overlook the importance 18th and 19th century Christians placed upon the doctrine of liberty of conscience—what they called “soul freedom.” Such views were most strongly held by Mennonites, Quakers and Baptists, but they were also part of the beliefs of colonial era Episcopalians, Methodists and Presbyterians.

John Leland was a traveling evangelical Baptist with a strong view of the individual’s relationship to God, the inviolability of the individual conscience, and the limited nature of human knowledge. He wrote, “religion is a matter between God and individuals; religious opinions of men not being the objects of civil government, nor in any way under its control.” He also wrote that “the state has no right or leave to concern itself with the beliefs of an individual or that individual’s right to expound those beliefs…The state is to maintain order, not to judge right and wrong.” And here’s my favorite Leland quote: “The very tendency of religious establishments by human law is to make some hypocrites and the rest fools; they are calculated to destroy those very virtues that religion is designed to build up…Government has no more to do with the religious opinions of men than it has with the principles of mathematics.”

Were there people who lived at the same time as Madison and Leland who felt otherwise? Of course. But it was the position of Madison and Leland that prevailed; it was their view of the proper relationship (which might more accurately be described as the proper lack of a relationship) between church and state that became part of our constitutional structure.

Today, in addition to rampant historical revisionism, there are two common justifications for allowing government to take cognizance of religion—arguments that are mutually exclusive, although often offered by the same people. They are sometimes called the instrumental argument, and the ceremonial justification.

You are all familiar with the instrumental argument; it is best summarized by a bumper sticker that was popular a few years ago: something along the lines of “When prayer was removed from the classroom, guns and teenage pregnancy came in.” A good example of the instrumental approach was offered by Tom Delay, right after the Columbine school shootings. DeLay said “I got an email this morning that said it all. A student writes, ‘Dear God, why didn’t you stop the shootings at Columbine?’ and God writes back ‘Dear student: I would have, but I wasn’t allowed in.’”

This naive belief that exposure to a denatured and generic religion in the classroom will make students behave is exactly the same justification given for current efforts to post the Ten Commandments—if people see “Thou shalt not kill” on the wall of a public building, well, they won’t kill. (For complex theological reasons I do not understand, this evidently doesn’t work if the building is privately owned.) Unfortunately, available evidence does not support this belief in the magical powers of religious iconography. The United States is by far the most religious of all the western industrialized nations—and we are also the most violent. There are few—if any—atheists in our prisons. Folks in the Bible Belt pray more—and kill more. And as Stephen Chapman noted in a column following DeLay’s comments, school shootings have not occurred in hotbeds of secularism like Berkeley or Cambridge or New York City, but in towns where Norman Rockwell and James Dobson would feel right at home: Paducah, KY, Jonesboro, ARK, and Littleton, CO.

The reason these proponents of government-sponsored prayer want government to make us pray is because they are convinced that in the absence of state coercion, we won’t. That’s why they object to non-mandatory, private baccalaureate services in lieu of prayer at high school graduations. Such baccalaureate services, which used to be the norm, permit meaningful prayer for those who wish to participate. So what’s the objection? Tellingly, it is that such services are voluntary—that those who “need” to prayer won’t come. The folks making this argument know what prayer is good for you and me, and are willing to use the power of the state to make us participate in a ceremony that includes that prayer.

The instrumental argument for supporting public religion and prayer is basically “religion is good for people, so the state should impose it.” The ceremonial defense of public religion is that it has no effect at all–that it’s meaningless. This is the argument that prayers at graduations and similar venues are merely “traditional” and “ceremonial.” People of faith—quite justifiably—find such characterizations deeply offensive. As a minister friend of mine used to say, he doen’t pray “to whom it may concern.” No religion I know of sanctions the notion that prayer is merely ceremonial, void of particularistic significance and useful only as an archaic (albeit charming) tradition.

The Founders of this nation believed that government neutrality in matters of religious belief—Madison’s noncognizance—was essential if government was to be seen as legitimate. They also believed that state neutrality was necessary if genuine religious sentiment was to flourish. You only need look at nations without a First Amendment to see how right they were; countries like England have seen state-sponsored religions degenerate into pleasant rituals without vitality; on the other end of the spectrum, nations like Saudi Arabia and Iran have employed the force of the state in the service of religious conformity. Both alternatives are instructive.

Let me just conclude these remarks by commenting on a couple of current manifestations of America’s religious culture wars: the President’s Faith-Based Initiative, and efforts to pass state and federal constitutional amendments banning same-sex marriage.

As many of you know, I recently completed a 3 year study of “faith-based” contracting— I think the questions raised by the President’s Initiative point to the wisdom of Madison’s insistence upon government noncognizance of religion, and to the accuracy of Leland’s observations.

Charitable Choice and the President’s Faith-Based Initiative are efforts to increase the numbers of “faith-based” social service providers contracting with the state. In order to accomplish that, government agencies must first define religion, or “faith.” (We all saw how well that worked with conscientious objectors.) I should note here, by the way, that the term “faith-based” is itself illustrative of the problem. I’m sure the phrase was intended to be more inclusive (and perhaps less alarming ) than the word “religion,” but it betrays an unconscious, and rather telling, bias. “Faith based” is a very Protestant religious concept. Catholicism and Judaism, among others, are “works based” religions.

Of course, government has contracted with religious organizations ever since it has provided social services, so the first question that arises is: How do the faith organizations the President proposes to recruit differ from Catholic Charities, Lutheran Social Services, the Salvation Army, and government’s many other long-time religious partners?

A much more troubling question comes next: Since the effort to recruit new faith partners has not been accompanied by additional funding for social services, it is hard not to see Charitable Choice as an effort to shift funds from one set of religious providers to another –presumably, from government’s traditional religious partners (who generally operate in accordance with applicable professional and constitutional norms) to more evangelical providers focused upon “personal transformation” of clients. If new FBOs do bid for contracts in any significant numbers, the competition for limited dollars will create precisely the sort of conflict among religious groups that the First Amendment was intended to avoid.

The First Amendment does not prevent government from doing business with faith organizations, but that doesn’t mean that any program run by a religious provider will pass constitutional muster.  There is a constitutionally significant distinction between programs that are offered by a religious provider or in a religious setting, and programs in which religious observance or dogma are integral to service delivery. Failure to understand that distinction invites the very mischief that so worried Madison and Leland.

Despite the rhetoric emanating from the White House, the question is not whether government should partner with religious organizations to provide social services.  It always has, and undoubtedly always will.  The question is “when are such partnerships appropriate and how should they be structured and monitored?”  Similarly, the question is not whether religious or secular organizations are better; it is “what organizational characteristics are most likely to predict successful program delivery?”
If there is one truism our study confirmed, it is that simpleminded confidence in the power of undefined “faith” is misplaced. No armies of compassion are rushing in to relieve government of its responsibilities for social welfare, and faith has not provided a short-cut to self-sufficiency.  As the head of one faith-based agency puts it, “Most poor people have all the religion in the world.  What they don’t have is job skills.” To which observation both Madison and Leland might have added: and government’s responsibility is limited to providing them with the job skills.

If the effort to portray “faith” as an important element in service delivery is misplaced, the war being waged against gays and lesbians is a frontal attack on two of the most fundamental principles of our constitutional system, equal protection of the laws and separation of church and state.

With all of the rhetoric about government needing to “protect” marriage, we sometimes forget that government cannot and does not sanctify marital relationships. Churches, Mosques and synagogues join people in religious unions; the state merely confirms those relationships for purposes of securing the legal incidents of that partnership status. If you are married in a civil ceremony, you have a civil marriage—meaning that the state recognizes your legal partnership for purposes of enforcing the obligations you have assumed.  Prohibiting state recognition of same-sex partnerships—many of which have, in fact, been blessed by a church or synagogue—denies gay couples access to 1008 legal rights that heterosexual citizens enjoy. Those include the right to be appointed as a guardian of an ailing or injured partner, the right to take family leave, the right to legally parent a non-biological child, and the right to half of the partnership’s accumulated property if the relationship dissolves. Same sex couples pay more taxes than married couples, because they aren’t entitled to spousal gift and estate tax exemptions and deductions. They can’t seek damages for a partner’s wrongful death. There are hundreds more—legal and civil rights enjoyed by any heterosexual married for two days or two months, but denied to gays who have been partners for 30 or 50 years.

The justifications for imposing these legal disabilities are virtually all religious, and rooted in the doctrines of some, but certainly not all, conservative denominations. Despite efforts to pretend there are secular policy concerns at stake, all one need do is look at the justifications offered to see their true nature:      

We are told that gays should not be allowed to marry because homosexuality is immoral. But all religions teach that rape and murder are immoral—and Indiana allows rapists and murderers to marry.
We are told that marriage and sex are for procreation. So where are the bills prohibiting marriages between old people and sterile people?
We are told that gay parenting is harmful to children, but there is absolutely no credible research confirming that harm.
We are told that recognition of gay unions will undermine the institution of marriage. But we are not told why that is so, and we were told the same thing about interracial marriage, and about allowing women to own property and vote.

At the recent rally in Indianapolis, the crowd was told that marriage is for biological parents and their natural-born children. Those of us with stepchildren we love every bit as much as we love our biological children, those who have adopted children they adore, found that characterization both inaccurate and offensive. 

We all understand that these measures are not efforts to protect families—they are efforts to privilege some families at the expense of others. They aren’t even about religion and morality—they are about whose religion, whose morality. That is why the issue is so important to so many of us who are not gay. It is because we know that when government gets the right to decide whose beliefs are acceptable, no one’s beliefs are safe.  

What happens when government imposes the religious views of some Americans on the rest of us?

First of all, government itself loses legitimacy, because it is acting contrary to the rule of law and norms of neutrality and equality. The rule of law requires that we constrain and limit the discretion of government officials. Every time we give those officials added discretion—to choose this religious service provider over that one, to send this welfare recipient to that religious program rather than this secular one—we increase the opportunity for abuse of discretion. We move further from the rule of law, and closer to the arbitrary exercise of power by man.  Furthermore, political conflict intensifies, making it more difficult for government to do the jobs it is supposed to do. If you doubt the accuracy of that observation, a quick look at Congress and the Indiana General Assembly should confirm the point.

Second, religious liberty is compromised, and with it, religion itself. Beliefs not freely chosen are by definition not authentic. The imposition of religious observances, or the passage of laws privileging religious beliefs, tends to increase the public’s skepticism about all religion.

Finally, society itself loses. Religious disputes are among the most bitter and divisive of conflicts. The current, highly contested political debate about “values” has been terribly corrosive of our national identity, and harmful to our sense of national purpose. We need to minimize the culture wars, not add fuel to the fire. The way to minimize conflict is to listen to the logic of James Madison and John Leland. The way to add fuel to the fire is to let the State make the religious beliefs of some Americans the law of the land.