Edward Tabash – The U.S. Presidential Election and Secular Values Voters

October 17, 2008

Edward Tabash is a constitutional and civil rights lawyer in Beverly Hills, California. He has chaired the National Legal Committee of Americans United for Separation of Church and State since 1995, and has argued and won before the California Supreme Court. He also sits as a part-time judge for the Los Angeles County Superior Court system. He has successfully represented the scientific outlook and secular humanism in public debates against the leading Christian philosophers around the world. In addition to serving on the Board of the Center for Inquiry and chairing the Council for Secular Humanism’s First Amendment Task Force, he chairs the Center for Inquiry’s Los Angeles branch.

In this conversation with D.J. Grothe, Edward Tabash explores issues valued by secularists and why they hang in the balance in this U.S. Presidential Election. He talks about gay marriage and abortion, and how both of these rights depend on a government neutrality in matters of religion. He details ways that pseudoscience and junk science are used to advance religiously derived public policy arguments against gay marriage and abortion. And he talks about global warming skepticism, and the need for scientific integrity in public policy. He emphasizes how the next U.S. President will reshape the Supreme Court, and what that portends for science and secular values. He also explains his role in gay rights victory with the Supreme Court of California earlier in 2008, and why he opposes Proposition 8, a proposed ballot measure in California that would amend the State Constitution to deny marriage rights to homosexuals.

Links Mentioned in this Episode

This is point of inquiry for Friday, October 17th, 2008. 

Welcome to Point of inquiry, I’m DJ Grothe a point of inquiries, the radio show and the podcast of the Center for Inquiry, a think tank advancing reason, science and secular values and public affairs and at the grass roots. Before we get to Edyta, boss, here’s a word from Free Inquiry magazine. 

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It is a great pleasure for me to have Edyta Bash back on the show. He is a constitutional and civil rights lawyer in Beverly Hills, California, and has chaired the National Legal Committee of Americans United for Separation of Church and State since 1995. He’s argued and won before the California Supreme Court and also sits as a part time judge for the Los Angeles County Superior Court system. He successfully represented the secular humanist point of view in scores of debates against the leading Christian philosophers around the world. In addition to serving on the board of the Center for Inquiry and chairing the Council for Secular Humanism is First Amendment task force. He chairs CFI is Los Angeles branch. Welcome back to a point of inquiry. Edward to Bash. 

Thank you for having me, T.J.. 

Eddie, to get the ball rolling, I should say at the outset that this conversation I want to have with you about science, about secularism and about this big election coming up. It’s not about endorsing one candidate over another. That’s not why we’re talking right now. 

Because the Center for Inquiry is a five, a one, C three. And as a board member of the Center for Inquiry, I cannot. In my role as speaking for or addressing the Center for Inquiry, I cannot oppose or endorse candidates for office. But I can discuss issues. 

Right. And that’s why you’re on. I want to talk about your views on the issues facing our listeners in this election. What you think is important, why you think it’s important and that’s fine. It should also be said that supporters of secular pro science values what CFI is all about. We are all over the political map. There are liberals and conservatives, libertarians and social Democrats. There are Marxists. There are anarchists who all work with CFI to advance our shared ideals. 

Yes, I think the best way of wording it, E.J., is that we can agree and disagree on a wide variety of political issues as long as we agree on the core and central ideal that government should be neutral in matters of religion and no act of government in any way promote religion. 

So tell me why. As a starting point, preserving secular government is so important to you. It keeps you up late at night. It wakes you up early in the morning. A you know, you’re you’re out there in the field. You’re speaking on the campuses into community groups. And that’s your thing. Preserving secular government. What’s the big deal? 

The big deal is that human history has demonstrated, as Thomas Jefferson and James Madison pointed out in the 70s and 80s, that the moment that government becomes the servant of a religious belief system, there is religious tyranny. For me, as a nonbeliever, I want to live in a society in which I endure no form of second class citizenship merely because I reject supernatural belief systems. And the only way to do that is for government to be neutral in matters of religion. 

But it seems to me that you’re making a bigger argument. It’s not just about your rights as a nonbeliever. You’re talking about the very fabric of our democracy. 

I’m saying that if governments can in any way discriminate against any person based upon the belief or beliefs in matters of religion that they accept or reject. We have a religious tyranny. No one in the United States should have any less complete a set of rights because of either accepting or rejecting any tenet of religious belief. And so the view by four members of the Supreme Court that governments should be able to favor religious belief collectively over nonbelief would mean that government should be able to favor those citizens who harbor a supernatural belief system as against those who don’t. And that would be overt discrimination. The most enlightened path to take is one where the government must treat believer and nonbeliever as fully equal. 

And that enlightened path that you’re calling for. You argue it has implications for a whole host of culture war issues, the kind of the big issues facing the electorate in this presidential race. Things like gay rights, abortion rights, global warming, other topics. Some people might argue it delves into the economic arena. We’re not going to talk about that right now, although people’s pocketbooks are issue number one these days. How does the the whole notion of preserving secular government? How does that touch on gay rights? People really imagine them separate. You’re saying they are part and parcel. 

What I’m saying is and I like to call myself one of the most pro-gay rights heterosexual men in the country. What I’m saying is that every single piece of offered legislation like our Proposition eight on the statewide California ballot that would re ban same sex marriage. Every effort to deny gays and lesbians the same rights as enjoyed by heterosexuals is always motivated by religious beliefs. And so you never find a secular organization or a group of people without religious motivation attempting to deny equal rights to gays and lesbians. So therefore, if any law is permitted to cut back on the rights otherwise enjoyed by gay people. Such a law is grounded in religious belief and is therefore unconstitutional. That is one of the. Crucial dangers in allowing religious doctrine to seep into the legal system Jim Underdown religious doctrine, like marriage, is a sacred institution given by God to humanity only for men and women. Right. Because the notion that two men or two women cannot marry or should not be permitted to marry does not have any scientific or empirically demonstrable basis. The only basis for denying people of the same gender, the equal rights enjoyed by opposite gender couples, derives from religious belief systems. And the law, if it functions properly, should not be able to take cognizance of that. No law should allow one to impose a personal religious view legally upon one’s neighbor. 

And maybe we’ll talk about this a little later if we are able to get into Proposition eight and your role in the Supreme Court victory that the gay rights movement had in California earlier this year. 

But the point here is that U.S. gay rights as a church state separation issue, I see it as a church state separation issue because I have never seen significant secular opposition to gay rights. So therefore, it means the motivation to deny gays and lesbians equal rights is a religious motivation. 

Jim Underdown a lot of gay rights organizations don’t argue that it’s really a church state separation issue. They they have other lines of attack. So this is kind of a unique role that the Council for Secular Humanism in our First Amendment task force and you are playing in the gay rights movement. You see the same kind of implications for things like abortion rights when it comes to church state separation as well. 

Yes, I do. Now, I have to say that in the abortion rights movement, you will find some secular people who are persuaded as to biological personhood of the fetus. 

Right. Nat Hentoff or others? 

Yes. Yes. However, when you look at the anti-abortion movement as a collective whole, the effort to deny a woman the right to end a pregnancy prior to term is primarily religiously motivated. And so, once again, we have to look at the intent of legislation now, certainly a concept that would argue that a fertilized egg as a human being is entirely grounded in religious doctrine because it’s about installment. It’s about insulin. Exactly. And so what we have to do is we have to make sure that no law that actually gets on the books and restricts any human being from doing what they would otherwise want to do is grounded in religious beliefs. Now, a very scary offshoot of this can be seen in Justice Scalia’s dissent in Lawrence vs. Texas, which was the 2003 case where the court ruled six to three that the states cannot criminalize private same sex acts. And what Scalia said was that the people of a state should be free to impose their collective idea of sexual deviation through their criminal law. Well, if one is a true conservative, one should reject this equally with true liberals, because Justice Scalia was talking about was the police power of the state being able to intrude into the privacy of the adult bedroom. Merely because a majority of one’s neighbors might disapprove of what could possibly be going on behind closed doors. How can you have limited government in any degree of privacy if the people of a state have a collective right for such intimate police power snooping? 

Right. A consistent libertarian would say keep the government out of my wallet, out of my bedroom, out of my conscience, you know, in other words, keep the government out. And the paradox on the far right is that you have many people saying, keep the government out of my wallet, but let’s get the government involved in everybody else’s lives, especially those people who I disagree with. Exactly. Eddie, as a person who would self-described as kind of a pro science person, maybe that opens me up to the criticism that I’ve made a religion out of science and all that. You know, I’ve I’ve heard that on the campuses couple times. But my point is I’m pro science. I look at the attacks from the. Far right. And I’m I mean, the cultural right against gay rights or abortion rights. And I see some junk science being advocated. So as a skeptic is a person who values science, that gets my hackles up. I see junk science claims when they say, oh, gay parents necessarily raise emotionally disturbed children and they offer just bad pseudo science as evidence. Or they say women who have abortions are much more likely to be mentally ill in their lifetime or to get cancer was, you know, a recent argument that I read. So it’s not just about church state separation, although it emphatically is church state separation in both of those issues. It’s also about junk science. And anyone who cares about science would care about the misuse of science in both of those culture wars. 

Yes. But here is where junk science and church state separation merge. If people with a religious motive can appeal to bogus junk science to get around the church state issue venture, a state separation has been nullified. No, let me elaborate. 

If somebody says, well, I’m not trying to restrict gay rights because of any religious belief, but these scientific studies show these psychological problems with gay men or show these psychological problems with women who have had abortion than what they are doing is they are using pseudo science to try to create a bogus but smokescreen alternative to their true religious motive. And they’ve made an end run around church state separation. So that is the danger. If we have pseudo science and you say you cannot base your law on religion, you have to have an empirical study and they have a bogus scientific study. 

What they have done is they have done a devious and run around church state separation by bootstrapping fake science into some kind of fake but possibly passable secular justification for what’s really a religious motivation. 

Eddie, we’re talking about scientific integrity versus junk science and these culture war battles where, you know, there’s a pitched battle between this group of people in society versus that group of people in society. And one of those issues that get that that warring happening is global warming. That’s another issue of scientific integrity, right? 

Yes, it is. Because what it is, is it is the rejection of the empirical demonstration of science for an ideological purpose. And every time legislation or opposition to legislation is based upon phony science or upon a rejection of the clear empirical data put forth by scientific investigation, then we have a shaky basis for either accepting or rejecting public policy. 

Answer for me why it’s religious conservatives that have been the biggest skeptics of global warming, human caused global warming. 

The reason is probably because it is the religious right wing that, generally speaking, rejects the use of science, the use of empirical investigation as a tool for going against what they want as an ideological basis for law. 

Obviously, there were moneyed interests, corporate interests. You know, Big Oil fought the the science behind a widespread belief in global warming. But at the grassroots, it wasn’t big oil telling people what to believe. It was global warming skeptics in the pulpit. And I just that’s it was a it didn’t really seem to naturally flow out of a person’s conservative religious beliefs. 

And I know it doesn’t. However, here is where you can see. 

That religious right wingers have a vested interest in the denigration of science because if they can achieve the ignoring of scientific data in order to disparage the truth of global warming, they have already attained a science perfect dodge when empirical science demonstrates something. And then they can turn around and try to dodge evolution and try to dodge other areas where science conflicts with their ideology. So using full and phony scientific claims to disrupt the clear scientific teachings about global warming is a kind of dry run experiment for how to get empirical science out of the way when you have an ideological ax to grind. 

And that same process can be transposed to something where there is a purely religious motive. 

So if you can get science out of the way to disparage the truth of global warming, it’s an easier step to get science out of the way to disparage the truth of evolution. 

I’m glad that you mentioned evolution. We had Lawrence Krauss on the show last week. The well-known theoretical physicist. And he was talking about the, you know, this presidential election briefly. He mentioned one of the candidates, one of the four candidates, president or vice presidential and opposition to the teaching of evolution. Not all of the people running for the executive branch believe in evolution. So even that’s one of the issues that hangs in the balance. 

Well, evolution education hangs in the balance like this. 

If, in fact, the president who replaces now 88 year old Justice Stevens, replaces him with a religious right winger, then. They will have on the Supreme Court for the first time ever, five votes in order to uphold the mandating of creationism in the public schools or at the very least, intelligent design. So the president, who replaces 88 year old Justice Stevens, determines not only if we have church state separation for, say, abortion rights, equality for gays and lesbians, but also determines if the integrity of science education and the public schools will hold up against the religious creationist onslaught. 

So you’re really saying all of the issues we’re talking about, you’re tying it to the Supreme Court in that sense, you are a one issue voter. The Supreme Court is the one issue you’re voting on. It’s your central concern. 

It’s my central concern, because if the Supreme Court falls, every issue that I care about in terms of the preservation of secularism also falls. We will not be able to preserve equal rights for gays and lesbians. We will not be able to preserve equality for the nonbeliever, will not be able to preserve scientific integrity in public schools. 

Abortion. Right. 

Abortion rights. We will not be able to preserve modern sex education. Nothing that is a product of scientific learning versus religious dogma will survive. If there is a shift of even one vote on the Supreme Court. So for me, as a church state separationists, I have no choice but to be a single issue voter on that issue. 

I think both candidates agree with you that the next president will be appointing one, two, maybe three justices to the Supreme Court. The candidates discuss that in the debate this week. Is it really all or nothing for you? Is it really? One candidate is really great on all these issues and the other is just not. 

Yes. I can’t go into specifics because of the nonprofit limitation on my role with CFI as this is a CFI broadcast. But I can say it is an all or nothing proposition. Absolutely right. 

We can’t really discuss the candidates any more than we have, but see if I can dig into the issues like we have been. We can even advance positions on certain policy questions where we can advance position all policy questions. 

We just cannot endorse or oppose candidates for office. 

A perfect example of a policy issue that that we have an opinion on and that we try to rile people up about. And, you know, get people involved in advancing a certain point of view is Proposition eight. We touched on it just briefly earlier. That’s the ballot measure in the state of California, which would amend the California Constitution to nullify the Supreme Court victory that the gay rights movement had there earlier this year. Tell me quickly about your role in that victory and then let’s talk about Prop eight. 

My role in that victory was of all the amicus briefs I filed. The main one that drew out the church state separation issues. And I argued to the justices of my home state court that banning same sex marriage is unconstitutional because it is an enactment of religious doctrine into law. Now, most amazingly, I had enormous help on this because both the concurring justice in the Court of Appeal and the dissenting justice on our side in the California Court of Appeal before this very case came to the California Supreme Court, openly admitted that the ban was grounded in religious belief. 

Only the concurring justice somehow believe the ban should be upheld anyway. But the dissenting justice, Jay Anthony Kline of the 1st District Court of Appeal in San Francisco, recognized that the ban on same sex marriage was rooted in religious belief and should therefore be struck down. 

So if the high court of the state of California ruled that the ban on same sex marriage should be struck down, how can Proposition eight as a ballot measure be passed the way it can be passed? 

Is this the California Supreme Court, in order to avoid being overturned by the U.S. Supreme Court, grounded its ruling exclusively in an equal protection interpretation of the California Constitution? None of the United States constitutional provisions were invoked in Chief Justice Ronald Georgias ruling Jim Underdown. 

So they were making their arguments based on the U.S. Constitution. They were basing it on the California Constitution. 

Now. Because it was grounded in the California constitution. The voters have the legal authority by ballot initiative, statewide ballot initiative to nullify the Supreme Court opinion by amending the California Constitution itself to reinstate the ban so they would actually amend the California state constitution to, for the first time, take away rights from a class of citizen. 

Absolutely. This would be the first time that the voters of the state of California would amend the state constitution in order to deprive a whole class of California residents rights that they currently have. Now, D.J., what’s very important is when I said earlier that the gay rights question is a crucible for church state separation. In no way is this being played out with greater intensity than in the battle over Proposition eight. The San Francisco Chronicle just reported that the effort to pass Proposition eight is exclusively a massive religious fundamentalist effort, an arch religious conservative effort with the Roman Catholic Church and the Mormon Church pouring in millions and millions of dollars into the campaign. 

So Proposition eight proves your argument before the California Supreme Court that it is indeed a church state separation issue. 

The funding of the yes side on Proposition eight by exclusively powerful religious institutions demonstrates that my argument that the effort to ban same sex marriage is a religiously motivated effort. Now, the tragedy that we’re facing thus far is that even though Republican Governor Arnold Schwarzenegger opposes Proposition eight. That the amount of money the yes side has obtained from these churches in the past few weeks has an able them to so saturate California media with misleading advertisements that we know aside for the first time are trailing in the polls. When the ballot measure first qualified a few months ago, we had a 51 percent majority. And now we are trailing somewhat. I’m not sure what the actual percentages are, but the yes side is putting on a multi-million dollar media campaign, misleading the voters into thinking that their rights will be hampered if same sex marriages can continue. 

That if Proposition eight is not passed, the churches will be forced to marry gays, etc.. 

It’s a and and what they’re doing is they’re saying that if the Supreme Court opinion remains in force, that California’s public school children will have to learn about same sex marriage. But here is the trick to say that people have to learn that other people have a right to live differently from them. It’s not indoctrination, but that is the vicious sleight of hand distortion that is now on the receiving end of a multi million dollar campaign. 

I just made a sizable contribution to the No. 

On eight campaign, even though it’s not tax deductible, like my contributions to CFI, because to me in my home state, a very socially liberal state, a state which is so socially liberal, we even sometimes are the laughing stock of other states. 

There is a real danger that a multi-million dollar religious funded ballot initiative could reinstate the ban on same sex marriage, even in socially liberal California. That’s how powerful the religious right wing is still in America today. 

Well, Eddie, you don’t sound very optimistic about Prop eight failing. What it would do? What are the odds that you give it? 

I don’t have a crystal ball. But I do know that if civil libertarians and people who care about church state separation and personal freedom would give money, even though it’s not tax deductible to the no on Proposition eight side. 

So we could equally compete with these millions of dollars of church money. We might have a chance, but I cannot predict at this point what the outcome would be. But I do hope that my brother and sister, Californians from all religious persuasions, would realize that religious dogma is not an appropriate basis to invoke to deny equal rights to law abiding citizens who hurt no one and just want to love another. Human being the same as any other group of human beings are able to love the persons of their choice. 

Eddie, I really appreciate this chance you’ve given us to have a discussion about the impact of electoral politics on the Supreme Court and the implications for science and secularism and the and the big issues we do. And the big issues we just discussed. Thank you very much, Ed Bash. 

Thank you for having me. 

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Contributors to today’s show included Sarah Jordan and Debbie Goddard. I’m your host DJ Grothe. 

DJ Grothe

D.J. Grothe is on the Board of Directors for the Institute for Science and Human Values, and is a speaker on various topics that touch on the intersection of education, science and belief. He was once the president of the James Randi Educational Foundation and was former Director of Outreach Programs for the Center for Inquiry and associate editor of Free Inquiry magazine. He previously hosted the weekly radio show and podcast Point of Inquiry, exploring the implications of the scientific outlook with leading thinkers.