The most contentious issue in the New Mexico Legislature session that just ended was, of course, the establishment of domestic partnerships. Opponents charged that the bill was simply a foot in the door to legalizing gay marriage and breathed a sigh of relief when the Senate voted 17-25 against the measure, a significantly larger margin of defeat than many expected.

Supporters of the legislation vowed they would be back to try again next year, and many blamed the defeat on lobbying by the New Mexico Catholic Church.

The vote took place six weeks ago, and so is old news, but the debate over the Catholic influence continues to rage and remains relevant.

I’ve read numerous letters to the editor from readers filled with outrage that the New Mexico Conference of Catholic Bishops had come out against the measure and that their opposition had swayed some Senate Democrats who had been supporters of a domestic partnership law. This, many alleged, was a violation of the separation of church and state.

Only two days ago, The Santa Fe New Mexican ran a “My View” commentary by Michael J. Sheehan, archbishop of Santa Fe, defending the church’s role in the debate:

The Church believes it has an obligation to share its rich 2,000-year tradition of social teaching with others, and the Constitution protects our right to do so. It is not a violation of the separation of church and state to do so! We do not state support for or speak against any political party or politician running for office.

Yeah, right, say angry Democrats: When you preach against abortion and gay marriage, you’re essentially supporting the Republican platform. In its self-righteous indignation, the party chooses not to make an issue of the church’s outspoken opposition to the death penalty, since in that instance the church is with the Democrats.

Whether the church is on the side of Democrats or Republicans is, however, beside the point. The issue isn’t ideology; it’s law: Is the church or is it not violating the constitutional separation of church and state?

Democrats say “yes” when they’re talking about abortion and homosexuality and keep their mouths shut when the issue is capital punishment. Republicans generally say “no” regardless of the issue, though some libertarian-leaning Republicans disagree.

Not long ago, I got into a debate with a fellow Republican who was bemoaning the damage all those religious-right types were doing to our party. He insisted that arguments based on religious beliefs had no place in political discourse, and that religious leaders interfering in the political process, as the New Mexican bishops had done, violated the separation of church and state.

I begged to differ, pointing out that the only mention of religion in the Constitution is in the First Amendment, which reads,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

This means only that Congress may not set up an established church of the United States the way Britain has an established Church of England, supported by tax revenues and with special privileges accruing to members of the established church. My fellow Republican replied that that isn’t all it means. So what does it mean? I pressed. He just repeated that it meant more than that but did not provide any justification for why he thought so.

I came home and double-checked the Constitution just to make sure I wasn’t crazy, but no, that indeed is all it says.

It seems pretty clear to me that a Catholic bishop expressing his opinion on a piece of legislation does not constitute the establishment of an official Church of the U.S.A., nor does it prevent any other citizen from freely exercising his right to his own religious beliefs. The fact is, Catholic bishops are entitled to express their opinions just like plumbers and architects and newspaper reporters and waiters and housewives and congressmen and prostitutes.

I only quoted the beginning of the First Amendment above. The rest of it reads:

or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Arguing that a Catholic bishop may not express his opinion on a piece of legislation is essentially depriving the bishop of his freedom of speech.

You can argue all day that he has more authority before his congregation than an ordinary citizen and that the weight of the church’s authority standing behind his pronouncements gives them some sort of coercive force over Catholic legislators and citizens, but that argument simply won’t hold water. When Archbishop Sheehan expresses his opinion against abortion or gay marriage or the death penalty, Catholics are free to agree (as I do on the first two issues and most Democrats do on the third) or disagree (as most Democrats do on the first two issues and I do on the third).

A lot of people allow their opinions to be swayed by what celebrities say — though for the life of me I’ll never understand why — so theoretically if we’re going to say Catholic bishops can’t opine, maybe we ought to say that Sean Penn and Susan Sarandon can’t either.

The fact is, Archbishop Sheehan has the same right to freedom of political speech as you and I do. His ordination did not strip him of the rights the Constitution guarantees him.

When the archbishop opines politically, he is exercising his freedom of speech; he is not establishing a taxpayer-funded church.

It was March 20, 2003, and hundreds of people were peacefully protesting the Iraq war in front of the University Bookstore in Albuquerque.

One of the protestors, an Albuquerque family practice doctor named John Fogarty, was beating a drum to express his opposition to a war he believed would bring needless injury and death to thousands of American troops, not to mention Iraqi civilians.

Fogarty, along with hundreds of others, followed directions from Albuquerque riot police to disperse from Central Avenue onto the University of New Mexico campus.
Two independent, amateur videotapes show what happened next, says his attorney, Mary Han.

Masked police officers arrested Fogarty, 43, and dragged him into clouds of smoke and tear gas. During the arrest, police tore tendons in his wrist. Exposure to the gas and smoke caused Fogarty to suffer an asthma attack, and he was rushed by ambulance to a hospital emergency room.

Albuquerque police arrested many other protestors at the event and a number of first-person reports from that day characterized the police action as unduly harsh.

On Dec. 8, Fogarty will get the chance to tell his story in U.S. District Court as part of his civil rights suit against then-police chief Gilbert Gallegos, three Albuquerque police officers and the City of Albuquerque.

Though he is the single plaintiff in a suit that seeks damages for unlawful arrest, excessive use of force and other civil rights violations, the legal action is really not just about him, says Fogarty.
He says that it’s about the uniquely American right to free speech, freedom of assembly and freedom to lawfully criticize our government and its actions.

Apparently, what happened to Fogarty could happen to anyone who publicly expresses opposition to the war, and that’s not right.

(In fact, a large group of other protestors have filed a separate, similar lawsuit against the city and a number of police officers stemming from the events of that day. That case is working its way through the courts and has so far seemed to support their claims that their First Amendment rights were violated.)

As part of his case, Fogarty’s attorneys will show the two videotapes showing his unprovoked arrest. Then, they will call a number of people who were at the protest that day and suffered similar treatment from the police. The list of witnesses will include members of the UNM medical school faculty, a Catholic nun, and a woman who was pregnant at the time and exposed to smoke and tear gas.

Finally, the attorneys will call every single police officer who was at the protest that day, most of whom were masked or otherwise obscured, and all of whom have claimed in depositions that they had nothing to do with Fogarty’s arrest, said Han.

According to Han, Fogarty’s case has already caused changes in the law to require police officers to openly identify themselves.

Fogarty’s trial will open Dec. 8 at the U.S. District Court house in Albuquerque before Judge William P. Johnson and is expected to last a week.

Fogarty, who now lives in Santa Fe and works for the Indian Health Service, says he welcomes anyone who supports the cause of free speech and the right to assemble to attend the trial -– peacefully, without protesting — and observe the legal process in action.