Why the Prop 8 ruling scares religious conservatives

August 10, 2010

WASHINGTON, D.C.

When U.S. District Judge Vaughn Walker struck down California’s Proposition 8 on Aug. 4, he said voters’ motivation for outlawing gay marriage was clear.

“The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples,” Walker wrote in his sweeping, 136-page decision.

“These interests do not provide a rational basis for supporting Proposition 8.”

Religion, in Walker's reasoning, amounts to a “private moral view,” which should not infringe upon the constitutional rights of others.

While some legal scholars say Walker’s decision lands on firm legal ground — a law must advance a secular purpose to pass constitutional muster — some religious leaders accuse the judge of trying to scrub faith from the public square.

“Judge Walker claimed to read the minds of California’s voters, arguing that the majority voted for Proposition 8 based on religious opposition to homosexuality, which he then rejected as an illegitimate state interest,” R. Albert Mohler, president of Southern Baptist Theological Seminary in Louisville, wrote in an online column.

“In essence, this establishes secularism as the only acceptable basis for moral judgment on the part of voters,” Mohler said.

On Aug. 5, Prop 8’s supporters filed an appeal of Walker’s decision. Jim Campbell, an attorney with the Alliance Defense Fund, a conservative Christian law firm involved in the litigation, said the religious freedom argument will play an important role as the case moves up the federal judicial ladder — including, potentially, the Supreme Court.

“At bottom, our strategy here is, and has always been, that in this country we should respect the rights of the people when they do what they have always done: vote based on their religious and moral convictions,” Campbell said.

Abolitionists, anti-abortion activists, and civil rights activists have all been motivated by personal faith, Campbell argued. “To be blunt, we felt (Walker’s decision) was an all-out attack on religion.”

Walker did note, however, that no religion will be forced to perform same-sex weddings.

Howard Friedman, an emeritus law professor at Ohio’s University of Toledo, said Walker is not attacking religion per se. He is just not giving religious expression any special consideration.

“He’s basically saying that a private moral view isn’t a rational basis for legislation,” said Friedman, who writes the popular “Religion Clause” blog. “Case law goes both ways on that. There are certainly some cases that say a merely moral view isn’t enough to support legislation. On the other hand, there are some cases that talk about laws being a moral view on society.”

Walker’s reasoning relies, in part, on a 1996 Supreme Court decision that struck down an anti-gay law in Colorado, Friedman said. That decision, written by Justice Anthony Kennedy — who’s considered a key swing vote on the high court — invalidated laws grounded in “animosity toward the class of persons affected.”

Walker devotes several pages in his ruling to identifying religion as a prime source of anti-gay animus, listing examples from the Vatican and the Southern Baptist Convention, and noting that 84 percent of weekly churchgoers voted in favor of Prop 8, according to a CNN exit poll.

As if to prove Walker’s point, Los Angeles Cardinal Roger Mahony released a statement the day of the ruling that said, “Those of us who supported Prop 8 and worked for its passage did so for one reason: We truly believe that marriage was instituted by God for the specific purpose of carrying out God’s plan for the world and human society. Period.”

Still, some religious leaders take issue with Walker’s conclusion that “religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”

“If religion is considered the chief obstacle to gay and lesbian political progress, then it would seem to follow that the state has an obligation to remove that obstacle,” said R.R. Reno, a senior editor at First Things, a Catholic journal based in New York.

“That’s not going to happen, because the First Amendment protects religious expression,” but it could lead to a sidelining of faith in political debate, Reno said.

Sister Mary Ann Walsh, a spokeswoman for the U.S. Conference of Catholic Bishops, says Walker is wrong on the law and the church’s theology. The Roman Catholic Church holds that homosexuality is not sinful in itself, but that homosexual acts are.

“Freedom of religion and freedom of speech allow us to speak without his deeming us harmful,” Walsh said. “Our teaching is our teaching.”

  1. It is my understanding that religion is deemed immutable under the United States Constitution thanks to the wisdom of our fore fathers and the 1st Amendment. The faithful could no sooner vote in opposition for prop 8 as they could stop using their opposing thumbs. The first Amendment protects the free exercise of religion; this includes the right of conscience. No appointed attorney has the right to deny us our vote just because our conscience will not allow us to embrace perversion as the law of the land.

    by Randy King

    August 20, 2010

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