This is a case for the Supreme Court, no?
That's a great point, Joe. The Court, in Lemon v. Kurtzman and Lynch v. Donnelly (O'Connor, J., concurring), has already decided that governmental endorsement of particular religious viewpoints or of religion over non-religion violates the Establishment Clause. In a similar line of cases, the Court has also decided in Lee v. Weisman, Board of Education of Westside Community Schools v. Mergens, and Santa Fe Independent School District v. Doe, that government cannot, even subtly, coerce adherence to particular religious viewpoints.
It seems to me that what the right really wants is a reformulation of Establishment Clause jurisprudence, because without such a reformulation, much of their argument is obliterated.
The majority view is in favor of allowing recognition of relationships in order that people have equal access to property, visitation, and inheritance rights.
What the majority rejects is the official endorsement of the secular liberal definition of marriage over the traditional definitions.
I'd be curious about some statistics to back up those statements. My recollection from the recently concluded election and the polling that took place within that time was that a large majority disfavored any public recognition of "non-traditional" relationships. In light of the fact that the Court has on several occasions defined marriage to be a right of cons utional magnitude (and, perhaps even a fundamental right (Zablocki)) that the use of religious antipathy as a basis for denying equal recognition of such relationships treads perilously close to governmental endorsement of a particular religious viewpoint.
There is absolutely nothing wrong with having one's religious viewpoint inform his political beliefs, none at all. Political beliefs stem from people's values, and for the devoutly religious their values stem from their faith. The penumbra of minority rights under the Establishment Clause does not extend so far as to proscribe any religious influence in politics whatsoever, as you appear to be suggesting. I submit that political activism is part of the exercise of religion for many, so that your idea violates the Free Exercise clause.
I don't argue that there's any prohibition (be it expressed or penumbral) against an elected official defining himself or herself (or his or her political philosophy) in a manner that tracks a particular religious viewpoint. I don't think anyone truly would suggest that such a cir stance would be desireable, and certainly, such a requirement would be altogether unenforceable. Nor do I think the exercise of the franchise should require the setting aside of a religious perspective, if that is what one chooses. Indeed, if one chooses to exercise his faith by becoming politically active, that is fine. It's at the point when he begins to legislate his morality -- to use the machinery of government to compel adherence to his particular religious viewpoint -- that I see Cons utional problems that, in my estimation, the Framers intended to curtail by drafting the Establishment Clause. I realize that this can be a fine line distinction, but I think in certain cir stances (like prayers in public schools, like abortion, like same-sex marriage, like certain faith-based initiatives), the line is rather bright and the right is beginning to encroach upon it.
If "religious liberty" means every person is free to speak his conscience about faith or lack thereof, as long as it does not coerce others to listen or participate, and that each person is free to participate in his own government per their own values and beliefs, be they religious or not, then I support that. If it means that the religious must be coerced into silence and into political disenfranchisement in favor of the secular, then I oppose it.
I don't necessarily disagree with that statement; I think its absolutely true as to private citizens and partially true as to those who choose to hold governmental office. Certainly, I don't think that the fact of religiosity should ever deprive one of a voice in government. That is, indeed, an hetical to the individual freedom protected by the Free Exercise Clause. But, I do think -- and I believe the Court's Establishment Clause jurisprudence supports my position -- that there is a point in governmental service where the protection of free exercise yields to the public interests served by the Establishment Clause. The assumption of public office does bring with it the limited concession of certain freedoms and rights. Its true in, for example, the defamation context. If there is to be any meaning at all to the Establishment Clause, that limited abridgment of unmitigated free exercise is necessary, too. When the government officially begins endorsing particular religious viewpoints through its policy initiatives, and when the government uses its machinery in a way that compels non-adherents or secularists or any other "religious minority" (for lack of a better term) to adhere to the tenets of a particular religious viewpoint, it's clear to me (and it seems to me that it is clear to the Court) that the prohibition of the Establishment Clause must come into play.
I still think Justice Jackson (not incidentally, the mentor to Chief Justice Rehnquist) said it best in Barnette:
"If there is any fixed star in our cons utional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any cir stances which permit an exception, they do not now occur to us."
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