The Immanent Frame

Everson v. Board of Education is considered a landmark of First Amendment jurisprudence. That 1947 case marks the first time the Supreme Court held that the disestablishment provision of the First Amendment is binding on the states, and not just on the federal government. The “incorporation” of the principle of disestablishment thus completed the task begun seven years earlier in Cantwell v. Connecticut, when a unanimous Court held that free exercise applied to the states. In Cantwell, the Court overturned the convictions of three Jehovah’s Witnesses, who had been arrested for unlicensed soliciting and a breach of peace.

On June 1st, President Barack Obama proclaimed June 2009 Lesbian, Gay, Bisexual, and Transgender Pride Month and called “upon the people of the United States to turn back discrimination and prejudice everywhere it exists.” If President Obama expected to be showered in lavender love in return for this proclamation, he was sorely disappointed. During June, grumbling about the Obama administration’s public stance on such issues as gays in the military, same-sex marriage, and the Defense of Marriage Act (DOMA) reached a crescendo. Candidate Obama had expressed his determination to overturn the military’s “Don’t Ask, Don’t Tell” (DADT) policy and DOMA; now-President Obama is taking a decidedly more muted tack—in the name of pragmatism. At a White House reception for invited gay and lesbian leaders on June 30th, with wife Michelle prominently at his side, the President implicitly acknowledged the slow pace of change (critics might say the no-pace of change) and counseled patience: “I know that many in this room don’t believe progress has come fast enough, and I understand that. It’s not for me to tell you to be patient any more than it was for others to counsel patience to African-Americans who were petitioning for equal rights a half-century ago. We’ve been in office six months now. I suspect that by the time this administration is over, I think you guys will have pretty good feelings about the Obama administration.”

Why is it that sex is such a central part of American political life anyway? Why, when The New York Times reported on the influence of “values” voters on the 2004 Presidential election, did the Times name only two “values,” both of them reflecting a conservative sexual ethic: opposition to abortion and opposition to “recognition of lesbian and gay couples”?

Despite the putative separation of church and state, one of the major places in the U.S. where religion and the state remained entwined is around sexuality, specifically at the point of marriage, where religious officials are actually empowered to act on behalf of the state. And whenever politicians talk about marriage laws, they nearly always do so with reference to religious commitments—and the political affiliation or philosophy of the policymaker doesn’t much matter in terms of this outcome.