Traditional Marriage Is Not a Religious Establishment

Via the Religion Clause blog, one of the dissenters in last week's Washington Supreme Court decision upholding that state's Defense of Marriage Act, argued that limiting marriage to one man and one woman is a violation of the Establishment Clause. Justice wrote:

What we ought not to address is marriage as the sacrament or religious rite--an area into which the State is not entitled to intrude at all and which is governed by articles of faith.... As succinctly put by amici ...: "To ban gay civil marriage because some, but not all, religions disfavor it, reflects an impermissible State religious establishment."... After all, we permit civil divorce though many religions prohibit it--why such fierce protection of marriage at its beginning but not its end?...

To many, same-sex relationships and same-sex marriages are contrary to religious teachings. But none of the plaintiffs in the cases before us today seek acceptance of same-sex marriage within a particular religious community. They seek access to civil marriage. Some churches and religious organizations may refuse to solemnize same-sex unions, and that is their right in the free exercise of religion under our constitution. A religious or moral objection to same-sex marriage is not, however, a legitimate state interest that can support the DOMA....

[R]eligious restrictions on the institution of marriage have never governed civil marriage in this country, nor would it be constitutionally permissible for them to do so. For example, historically many religions have strictly forbidden marriage outside of the denomination, but these churches could not prevent interdenominational civil marriages because "marriage was [ultimately] a state matter, not subject to . . . religious restrictions."... This court cannot endorse the use of state law to impose religious sensibilities or religiously-based moral codes on others' most intimate life decisions.... The DOMA reflects a religious viewpoint; religious doctrine should not govern state regulation of civil marriage.


Is this right? Can the Establishment Clause ("Congress shall make no law respecting the Establishment of religion"; often referred to as the "separation of church and state")really prohibit moral judgments based on religious faith? All sorts of moral judgments are based on religious faith and, I would argue, that every moral judgment is based on some first order principle, i.e., something that you simply must accept or reject and which cannot be proven. Wouldn't a rule of law that said you can base a law on any first order principle except a religious one itself be an establishment of secularism? I know I am a broken record on this, but wouldn't it have required telling the Rev. Dr. Martin Luther King to shut up? If same-sex marriage is constitutionally compelled, it can't be because traditional marriage is an establishment of religion.