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Marriage amendment has nothing to do with ‘separation of church and state’

In his Sept. 11 Community Voices commentary, “Separating church from state on the marriage amendment,” Jonathan Eisenberg of Americans United for Separation of Church and State offers a slick but analytically deficient claim that passing the marriage amendment would unconstitutionally codify “conservative” religious doctrine into Minnesota’s Constitution. But passing the marriage amendment in Minnesota would not violate the Establishment Clause, and the church-state issue ultimately does not assist Minnesota voters in deciding whether to support the proposed state marriage amendment.

The problem is that religious groups come down on both sides of the marriage amendment, some supporting it and some opposing it, as Eisenberg acknowledges. So either passing or defeating the marriage amendment would “impose one specific religious view on all citizens” as Eisenberg fears. Therefore, the concept of “separation of church and state” doesn’t advance the debate one way or the other because the argument of “imposing religion” cancels out on both sides of the equation like a factor in an algebra problem.

Does Eisenberg really want to apply his extreme view of “separation of church and state” to all of our laws?  No one is seriously concerned that state laws against stealing, murder and giving false testimony are “imposing religion on people” because they agree with the Ten Commandments. Next time some lawmaker urges that we aid the poor, help the immigrants and children in our state, which the Book of Leviticus commands, or that Congress should forgive the debts of Third World nations because of the Old Testament’s Year of Jubilee, will Eisenberg oppose them all?

What about laws banning racial discrimination, that the Rev. Martin Luther King Jr. argued were mandated by Jesus’ words to love our neighbor as ourselves? I doubt that Eisenberg would ask the state Legislature to repeal them. But such an appeal would be logical under his principle.

High court has rejected this view

Fortunately, the Supreme Court has repeatedly rejected this harsh view of “separation of church and state,” ruling that a law does not “violate the Establishment Clause because it happens to coincide or harmonize with the tenets of some or all religions,” Harris v. McRae (1980).

Eisenberg argues that Minnesota violates the Establishment Clause and the Free Exercise Clause because the current state marriage laws “are blocking clergy and congregations that wish to legally marry same-gendered couples from doing so.” The proper response, Eisenberg urges, is for Minnesota to “repeal its existing legal restrictions and allow equal marriage rights to same-gendered couples.” But repealing the current state law defining marriage as one man and one woman would allow a lot more types of marriages. Some religions believe in polygamy, others in group marriage (polyamory) or no marriage limitations at all. Minnesotans could not have a law with a uniform definition of marriage for all people, but would have to accommodate everyone’s varying definitions of marriage. This would not be “marriage equality,” but marriage fragmentation and disintegration.

The concern over “legislating religious doctrine” by passing the marriage amendment evaporates because Minnesotans favoring the amendment find support in sound reasoning and evidence that has nothing to do with religion. Approving the marriage amendment would stop state courts from using the state constitution to throw out current marriage laws (as courts have done in nine states in the past 20 years). In fact, Minnesota has such a lawsuit going on right now in Hennepin County District Court, so this is no abstract threat. The amendment would maintain the authority of the people and their state lawmakers to decide the marriage issue.

Consensus of cultures

Approving the marriage amendment would further align Minnesota with the common consensus of cultures from around the world since the dawn of time. That consensus is that societies function best by instituting a public institution of marriage, defined as one man and one woman because children are best raised by their own father and mother in a marriage that is monogamous, sexually exclusive, and lifelong.

Current social science agrees that children raised in a household of their married father and mother have improved health, better educational outcomes, less drug and alcohol addiction, and less child abuse than homes structured otherwise. Thus, voters can rationally and reasonably support this amendment based on reasons that have nothing to do with religion.

Jordan Lorence is senior counsel with Alliance Defending Freedom, actively defending marriage laws and amendments throughout the United States. Lorence was born and raised in Minnesota, and is a graduate of the University of Minnesota Law School. He argued the winning side in the recent decision of the Minnesota Supreme Court on the ballot title for the marriage amendment, Limmer v. Ritchie.


Write your reaction to this piece in Comments below. Or consider submitting your own Community Voices commentary; for information, email Susan Albright.

Comments (24)

  1. Submitted by rolf westgard on 09/18/2012 - 06:26 am.

    Which marriages are really best for children

    It is not clear that children in conventional marriages do better than those with two same sex parents. The number of failed conventional marriages is legion. And we know the results with the children in those marriages. Those rose colored glasses through which Mr Lorence is viewing all those ideal marriages are obscuring reality.
    Mr Lorence is right in saying the amendment is not about religion. It’s about gay bashing.

    • Submitted by Pat Berg since 2011 on 09/18/2012 - 08:17 am.

      My favorite part . . . . . .

      was where he cited “common consensus of cultures from around the world since the dawn of time”.

      Really? And can we get the name and credentials of whoever it was that was hanging around then collecting that data?

      Thank you Jordan Lorence for my morning giggle.

  2. Submitted by Thomas Swift on 09/18/2012 - 07:55 am.

    “The number of failed conventional marriages is legion.”

    So, why not just put a match to the whole idea….yeah, heard that one before.

    Ya know, for a group that has made a career out of beating people of faith over the head with evolution, leftists sure find it easy to toss it under the bus when it doesn’t fit their meme of the day.

    • Submitted by Bill Gleason on 09/18/2012 - 05:33 pm.

      “beating people of faith over the head with evolution”

      Evolution, not intelligent design, is fundamental Catholic teaching, Vatican Observatory director says


      According to the Catholic Church, Mr. Swift:

      “evolution is no longer a mere hypothesis” it is “a fundamental church teaching”

      Pope John Paul – in above link

      People of faith are perfectly capable of behaving in a rational fashion with respect to evolution, Mr. Swift. Feigned or real ignorance is no longer required.

      The Catholic Church now encourages science. Fortunately, lessons have been learned by the Church from Galileo’s time until now.

      • Submitted by Thomas Swift on 09/25/2012 - 11:44 am.

        I think my point went right over yours…

        I understand the church’s stance on science and evolution, Bill…I’m a practising member. My point was that in order to justify an “equality” of same sex couplings, pro-homosexuals must ignore evolution’s most basic rule:

        Nature evolves a species in order to ensure it’s continued survival.

        Homosexuality does not fulfill that mandate, thus it is highly unlikely that it is a natural evolution deserving of normalization within a rational, science based society.

        With any luck, pro-homosexuals will follow the Church’s lead vis-a-vis “Galileo’s time until now”.

  3. Submitted by Kenneth Sachs on 09/18/2012 - 09:35 am.

    Marriage amendment

    Of course the so-called marriage amendment is an attack on the separation of church and state. All the religious groups endorsing it are conservative politically and male chauvinistic treating women as second=-class citizens. These are the same people who call for a “personhood” amendment which is putting religious dogma as fact.

    The Torah tells us Jacob had 2 wives. King Schelomo [Solomon] had multiple wives. So the idea one man one woman connot be sustained by quoting the “Bible.”

  4. Submitted by Michele Olson on 09/18/2012 - 09:44 am.


    We do not help the poor and immigrants in this country because the book of Leviticus commands it. We do this to keep our society well-ordered and to prevent chaos, as has happened throughout history (reference Reign of Terror, 1905 Revolution in Russia).

    This amendment will allow government to dictate to faith.

    • Submitted by Thomas Swift on 09/18/2012 - 10:45 am.

      In the interests of a well ordered society…


      That is exactly and precisely why we have chosen to give marriage special treatment. Rational observation has led us to conclude that children are best raised by an intact family headed by a mom and a dad. THAT is the foundation upon what our country was built, and it is the foundation upon what we have reared healthy, happy, well adjusted children since all of recorded history.

      “Progressive” “thinking” brought us no-fault divorce; the normalization of no strings, “hook-up” sex; widespread drug use & on and on…

      Now leftists are bent on finishing off the last details, but thankfully it seems there are *just* enough rational folks left to stave them off a while longer.

      • Submitted by Bill Gleason on 09/18/2012 - 12:15 pm.

        “rational observation”

        Wow! Could you mean rational insertion of heads in the sand?

        “family headed by mom and dad … since all of recorded history.”

        On its face, this is a ridiculous statement to make.

        Mr. Swift, what you have said here flies in the face of the fact that same sex marriage is allowed in the US in states such as Massachusetts and even in Iowa. Eventually the Supreme Court will allow it for all of the US under the equal protection clause. Two examples, currently, are wending their way to the Supreme Court on this matter. You cannot allow same sex marriages at the state level and yet refuse to acknowledge them at the federal level in such matters as income tax, social security benefits, etc.

        Our neighbor to the North, Canada, has legalized same sex marriages. Last I heard they were doing pretty well.

        • Submitted by Thomas Swift on 09/18/2012 - 01:38 pm.

          OK Bill, I’m your Huckleberry…

          You snipped bits and pieces out of a sentence:

          “family headed by mom and dad … since all of recorded history.”

          And opined that “On its face, this is a ridiculous statement to make.

          I’ll agree that this disembodied snippet makes no sense, but evidently you saw some point in it with which you disagree. Will you honor us with an explanation?

          You doubled down on your enigmatic thought processes by stating “what you have said here flies in the face of the fact that same sex marriage is allowed in the US in states such as Massachusetts and even in Iowa.”

          In what way, exactly, does that happen Bill? Please give us some details…

          And the fact that Canada legalized same sex marriage makes what contribution to our discussion, exactly? Do you have some information regarding the health, happiness and well adjusted nature of kids in homosexually headed homes? If so, please do share….if not, please as you often like to say, “Do your research” and get back to us.

          • Submitted by Bill Gleason on 09/18/2012 - 03:18 pm.

            The whole sentence seemed like nonsense to me, Mr. Swift.

            I just wanted to bring the pieces together that were ridiculous on face.

            All of recorded history, headed by mom and Dad.

            Really? The Bible is recorded history, for example? Polygamy mentioned multiple times.
            And that is just the tip of the iceberg as far as all recorded history goes.

            You are really scratching, nowadays, Mr. Swift.

            • Submitted by Thomas Swift on 09/18/2012 - 03:58 pm.


              Actually, you pieced two sentences together, but I digress.

              I don’t agree with the idea of polygamy Bill, we are no longer a sparsely populated species dependent on the labor of many hands to survive, but even in that situation, each and every child had one dad and one mom, right?

              You don’t think the Bible was referring to a homosexual setting, do you? No, I’m sure not.

              Does that about cover it for you, or did you have other examples you thought “ridiculous on face” [sic]. I’d be happy to go through any thing you feel has been left unexamined.

  5. Submitted by Christa Moseng on 09/18/2012 - 10:55 am.


    It depresses me that proponents of this amendment persist in the illusion of rational debate. It demeans us all to have to read flimsy, paper-thin ‘reasoning’ in defense of the measure, rather than having them own up to it being an emotional and religious issue for their part.

    You can recognize two-party civil marriages without the institution disintegrating as claimed. Scaremongering about a slippery slope isn’t an appeal to rationality. The claim that “Minnesotans favoring the amendment find support in sound reasoning and evidence that has nothing to do with religion,” certainly runs into trouble when you review the testimony presented to the state legislature during its evaluation of the proposed amendment–virtually all in favor was presented by various clergy. Every non-religious reason is a post-hoc *rationalization*, not a rationale.

    And the duplicity is further revealed when proponents make arguments that appeal to history “since the dawn of time.” Besides it being hard to conceive of a lazier implementation of that particular logical fallacy, it has the added disadvantage of being easily disproven. (Source: THE BIBLE)

    But that’s the quality of rational argument that passes for serious debate on the pro-marriage-restriction side. And we all have to live with it until they finally lose.

    • Submitted by Thomas Swift on 09/18/2012 - 10:51 am.


      Although my faith does advise me, I have mounted an argument based solely upon science, human biology and common sense. If it be “paper thin”, that doesn’t say much for the opposing viewpoint since it has yet to be defeated by anything gay marriage fans have fielded.

      By all means though, I welcome any attempt you might care to try.

      • Submitted by Christa Moseng on 09/18/2012 - 12:45 pm.

        Conditional acceptance

        I’d be willing to accept this offer in a formal, structured format hosted by MinnPost—not in comments—on the condition that future presentations of our arguments were not allowed in comments to any future articles. Comments are a lousy place for substantive debates, because the “victor” is generally the one who appreciates the diminishing value of the exchange last.

        Instead, let us hash it out definitively, and in a more public forum. A forum suited for the gravity of the debate. I propose one round for initial presentation, two rounds for rebuttal.

  6. Submitted by Neal Rovick on 09/18/2012 - 10:39 am.

    …the common consensus of cultures from around the world since the dawn of time….

    The only “common consensus” is that sex happens and children come from sex between a man and a woman. It needn’t be “monogamous, sexually exclusive, and lifelong”, and in fact, throughout history, has been quite different than that.

    Looking around the world today, there are obvious and manifold examples of “child brides”, “arranged marriages”, and “plural wives” which fly in the face of a free-will marriage agreement between one man and one woman–even in the US. Looking in the Old Testament, if you want that reference, all of those were present in the BCE period among the ever-so-holy Israelites.

  7. Submitted by Greg Kapphahn on 09/18/2012 - 10:50 am.

    It is NOT the Job of the State of Minnesota

    To reinforce the “conservative” view of marriage by enshrining it in the constitution.

    It is and always was, “from the beginning of time” the function of clergy, religions, and religious institutions to teach their own beliefs, perspectives and dogma to their own adherents, and to seek to win faithfulness from their members by convincing those members of the “true” definition of rightness and righteousness, and the blessings to be won by those who follow their religion.

    Those who would seek to have the state underline their form of faith by making it official state policy clearly reveal that they no longer believe they can convince their members that their religious expression is worthy of following. Seeking to do so is an NOT an act of faith, but an act of desperation and demonstrates the clear intention that, rather than placing their faith in God, they are now placing it in the state.

    Since there are religious organizations, clergy, and individuals on both sides of this issue, all citing the tenets of their faith as they understand it,…

    and despite the fact that many on either side regard those who oppose them to be heretical in their beliefs,…

    is is NOT the proper function of the state of Minnesota to enter into this argument, no matter what the view of the majority of voters.

    “Conservative” religious institutions never can and never will be forced to perform marriages to which they object. Such marriages will, therefore, NEVER infringe upon the rights of such organizations. This amendment would however, make it impossible for the many religious organizations desiring to do so to perform valid, legal marriages for those whom they approve of.

    Therefore, even if gay marriage is allowed, it will not infringe on the rights of “conservatives” not to participate in or perform such marriages. If gay marriage continues to be outlawed, however, it continues to infringe on the rights of those whose faith leads them in different directions to perform the marriages their faith leads them to perform.

    The right to outlaw expressions of faith with which you disagree, simply because you disagree with them, is clearly NOT allowed by the US constitution.

    It is a clear and unequivocal violation of the establishment clause to amend the Constitution of the State of Minnesota to favor one side of this debate over the other.

    Both sides of this issue must be left UNestablished, thereby allowing the free expression of faith guaranteed by the US Constitution and our state Constitution.

  8. Submitted by Jon Eisenberg on 09/18/2012 - 06:15 pm.

    Get out your calculator – or at least a dictionary

    ***The proper response, Eisenberg urges, is for Minnesota to “repeal its existing legal restrictions and allow equal marriage rights to same-gendered couples.” But repealing the current state law defining marriage as one man and one woman would allow a lot more types of marriages. Some religions believe in polygamy, others in group marriage (polyamory) or no marriage limitations at all. Minnesotans could not have a law with a uniform definition of marriage for all people, but would have to accommodate everyone’s varying definitions of marriage. This would not be “marriage equality,” but marriage fragmentation and disintegration.***

    That’s a red herring, and a tired one at that, because humans actually can count. That’s why my article stated (as the author almost quoted correctly) that the law should be changed to allow “same-gender [not ‘gendered’] couples” equal marriage rights.

    Merriam-Webster’s Dictionary defines couple as:
    1. a : two persons married, engaged, or otherwise romantically paired
    b : two persons paired together

    I did not call, as the author suggested, for repeal of existing laws allowing us to fall into the total darkness of abject anarchy (“fragmentation and disintegration”). I called for Minnesota to “repeal its existing legal restrictions” and to “allow equal marriage rights to same-gender couples.”

    • Submitted by Steve Rose on 09/19/2012 - 05:56 am.

      Don’t Limit the Freedom to Marry

      “Don’t Limit the Freedom to Marry” seems to be the theme of yard signs, banners, and T-shirts in my Minneapolis neighborhood. That sounds a bit broader than your narrow view of restricting marriage to couples. I have to ask, what is wrong with other marriage forms? If between consenting adults, who are you to judge the form they choose to live out their love?

      Down the road in Iowa, the Supreme Court ruled in an unanimous decision in Varnum v. Brien that “state laws prohibiting marriage on the basis of the partners’ gender are unconstitutional.” As we know, judges don’t make laws, but have the authority to throw them out; legislators make laws. Has the legislature in Iowa made a new marriage law, to replace the old one which was declared unconstitutional?

      • Submitted by Jon Eisenberg on 09/19/2012 - 02:10 pm.

        Not taking the bait

        I’m not going to argue for or against positions I’m not taking. Others can make those arguments if they wish.

        It’s a sign of weakness that proponents of the amendment always revert to issues of polygamy or even more ludicrous hypotheticals to try to prove some point.

        • Submitted by Steve Rose on 09/19/2012 - 03:54 pm.

          Why would you deny equal rights to all?

          It seems that the equal protection clause is central to the argument for same gender marriage. It’s a sign of weakness that opponents of the amendment won’t address the issue of all forms of marriage that people may choose to form.

          Flimsy and shop worn defenses like “not taking the bait” and “red herring” are veneers so thin that they are transparent.

  9. Submitted by Paul Udstrand on 09/24/2012 - 10:00 am.

    Common consensus?

    We’re not talking about a law that happens to coincide with some (but not all) religious teachings, we’re talking about a law that is explicitly derived from the religious teachings. Furthermore the author clearly doesn’t understand the nature of secularism. Secularism isn’t an attack on religion, it’s simply a denial of any particular religious supremacy. The idea that any secularist anywhere advocates the elimination of any law simply because it happens to be endorsed by some religion is absurd. This is the best straw man I’ve seen in this year.

    This author is a perfect example of the religious thinking that produced this amendment. The notion that religious law is appropriate is based on a serious failure to understand the secular democracy our founding fathers designed. We have a constitution that tries to protect minorities from the tyranny of the masses and guarantees certain rights regardless of popularity or consensus. These guarantees exist because framers recognized that such consensus is frequently temporary, irrational, and can be oppressive. For instance, until the 17th century much of the world believed slavery was perfectly acceptable. Here in MN the most recent polls suggest an even split amongst supporters and opponents, so there isn’t even a clear majority in MN supporting this marriage restriction.

    Finally, what we have here is a bait n switch article. The author claims he’s going to explain why this amendment has NOTHING to do with religion but instead goes to explain why it’s an expression of religious morality but that’s OK because it reflects some kind of consensus.

    The fact is that this is an attempt to install a religious belief in our state constitution. No ever said the every religious person in MN supports it, nor is such support necessary to determine the fact.

  10. Submitted by Paul Udstrand on 09/25/2012 - 08:28 am.

    At any rate the authors simply wrong.

    Anthropologists have found that two thirds of the worlds cultures historically actually condone homosexuality. Furthermore, this idea that marriage is about making babies and families, and stable societies is an aberration of the 1950s, and didn’t last for many reasons, primarily it was just too oppressive for too many people. As for marriage and babies, one study found that the percentage of out of wedlock babies born in 1850 was the same as 1970. (“Out of Wedlock Childbearing in an Ante-Bellum Southern County” Journal of Family History 15 (1990).

    The entire notion that American families are in some kind of historical decline is based on fantasy pretending to be history pretending to be nostalgia. Historically families today look more like they have traditionally throughout US history. The 50s nostalgia that these Republican initiatives are built around is based on a aberrational decade unlike any other in US history. To the extent that these marriage initiatives are not based on religious beliefs they are based on nostalgia pretending to be tradition and scientific observation.

    There’s a really good book about all of this: “The Way We Never Were: American Families and the Nostalgia Trap” by Stephanie Coontz (1992).

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