Presence

"if you are really, really committed to a country that shall make no law based on religion"

First Amendment - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;...

The 1st Amendment does not state we shall make no law based on religion, for that would be a theocracy. However, our laws are based on morality and if someone is to be intellectually honest, our sense of morality comes from a higher power. And more specifically speaking, that higher power for the framers of the Constitution was God. Being an example to the rest of the world we must lead accordingly with the utmost respect for morality and God. They are not mutually exclusive.

Jeff,

Good point; I should have said, "seperation of Church and State." Whether or not this is an issue is actually a good question. According to this site (http://www.religioustolerance.org/scs_intr.htm), it's unclear to me whether or not same-sex marriage would fall under the establishment clause or not. I know there are some lawyers/law students that read this site, so if they would comment, that would be great!

Your comments about the relationship between the framers of the Constitution and God raises an important issue.

I think our difference in religion explains our differing views. I view my religion as seperate from my politics; when I got married, I had both a religious and civil marriage. Often, among Orthodox Jews, the civil and religious marriage is done on different dates, and sometimes the civil is not done at all! There is no religious significance, for me, in my secular marriage. It is simply a legal statement that allows my wife and myself to file taxes together, share benefits, etc. No doubt this stems from the fact the Jews are in the minority in this country (despite the fact that we control the media).

I think Christians view it differently, probably because the majority of the country is Christian, and because the framers of the Constitution were Christian as well; that the civil institute of marriage has religious significance as well. I think, from this position, it's harder to defend the current institute of marriage as not having some religious significance, and possibly coming into conflict with the establishment clause's Lemon Test.

Some important points of information need to be made when discussing the First Amendment.

1) Those who quote the first amendment's wording when entering into discussions like this one are simply not familiar with what has happened since 1790. The first amendment has grown considerably since then by Judicial decisions.

2a) In the 1880's or 1890's, the Supreme Court extended the Bill of Rights, including the First Amendent, to the Individual States as well. They also came to understand that it was not only "congress" that was limited in its power, but also the executive and judicial branches.

b) After that, the major damage done was in 1970. Do a google search on "Lemon Test". It was in that case that the Supreme Court of the US, under the stewardship of Earl Warren, imposed a very very very broad definition of the phrase "respect an establishment of religion". It stinks, yes. That is clearly not what the framers intended. But that's what we're stuck with. So any discussion on the extreme attitude some have towards the 1st amendment needs to puch for a reversal of the Lemon decision.

3) The ban on homosexual marriage, like the ban on abortion and many other morally based laws were based not so much on religion as on the common sense of the nation that was indirectly based on religion. Now that this common sense is no longer dominant, we squirm as we have no choice but to fall back on the real reason. And when we do that, the Supreme Court tells us we can't. cf the Texas Sodomy case.

Lemon is no longer good law, per se.
See 995 Sup. Ct. Rev. 323 otherwise know as QUO VADIS: THE STATUS AND PROSPECTS OF "TESTS" UNDER THE RELIGION CLAUSES by Kent Greenawalt. You will see that the entire area is quite messy.
Nor is there clarity as to how to approach ideas predicated on religious belief regardless of how much it may accord with your idea of common sense.
Lastly, the Founders have many different views on religion that make such investigation unhelpful. The best stab at it has been to say that they were deists- not a position many of us would be comfortable with.
I do not mean to disagree with any opinion cited here. Rather, to simply raise the point that there is no one clear path to dealing with these issues.

I don't know what you mean by "not good law per se". I'm sure you didn't mean it's not a good ruling. That much is clear to me. ;) Has it been overriden?

I read the ruling that ordered the removal of the Ten Commandments from the court building in Alabama this past year. In the ruling, the judge wrote that despite the fact that many don't like the lemon test, it has not been overturned and is still the law of the land.

>>

That was precisely my point.

It is still good law in the sense that there has been no better test that the Court has been happy with. It suffers, though, from being derided by almost every present day Justice.
I will quote a bit from the article already cited. I hope you will be able to find the article online. Perhaps I will be able to think up some articles that I know are online that address these issues. Greenenwalt, however, is a huge expert on these issues. He is also very familiar with questions of Jewish law and the Constitution and has written of these topics over the years.
"The Lemon test for establishment cases was sharply challenged from within and
without the Court. Each of the three strands was criticized as vague, ambiguous, and
inappropriate. From time to time, the test did not seem crucial, and in one instance
the Court explicitly disregarded it. Major challenges stated that: (1) courts
should not judge motives of legislators; (2) determining primary effects is too
difficult; (3) a test condemning promotion of religion does not recognize
permissible accommodations to religious exercise; (4) levels of supervision designed
to avoid improper effects should not be treated as unacceptable entanglements; (5)
the bar on undue entanglement has sometimes mistakenly included a separate focus on
political divisiveness. Justice O'Connor proposed an "endorsement test" as an
interpretation of the first two elements *325 of Lemon. Under this test, adopted by
the Court in one case, [FN4] judges inquire whether a reasonable person would take
the challenged state action as endorsing a religion. Some Justices indicated that
the core of a correct establishment standard is whether a law or practice would have
a coercive effect on nonadherents. Some Justices proposed that the central question
lies in how a challenged practice compares with practices accepted or rejected by
the constitutional founders.
The various criticisms, interpretations, alternatives, and supplementary
standards for the compelling interest and Lemon tests bear significantly on present
prospects for adjudication under both Religion Clauses. To understand how this is
so, we need initially to see how circumstances have changed in the last few years.
The Court startled religious clause scholars in 1990 when a majority of five
declared that the compelling interest test did not apply to most free exercise
cases."