By William C. Duncan
Most people are rightfully leery of buying something just because the seller touts his or her personal religious activity. In California, right now, there are groups working to defeat Proposition 8, the proposed constitutional amendment that would protect the institution of marriage as the union of a man and a woman. Part of their sales pitch is their religious identity.
They feel the need to advertise this because their own church, The Church of Jesus Christ of Latter-day Saints, has officially announced its support for the common-sense measure that would reverse the actions of a bare majority of the California Supreme Court that ruled in May that a hitherto unknown and still unwritten provision of that state's constitution required that marriage be redefined to include same-sex couples.
Most recently, an attorney and a group calling itself “Mormons for Marriage” have been attacking the idea that redefining marriage in California creates possible negative ramifications for religious liberty in this state. They have attempted to refute an anonymous document that lists some of these potential ramifications. They say the document misconstrues legal precedents and that, actually, there is no reason to worry that churches and religious believers will be harmed in any way if California redefines marriage.
Anyone can read the LDS Church's official statement on the issue, “The Divine Institution of Marriage,” published on August 13, 2008 and available on the Church's website for a careful and persuasive examination of this question that concludes that the redefinition of marriage does bode ill for religious liberty. Interestingly, one of the attacks cites to the Church statement to argue that the debate over marriage should be civil (a point on which all hopefully agree) but does not note this section.
In addition, eminent religious liberty scholars who have a variety of opinions on the subject of same-sex marriage all agree that a conflict between the state and religious organizations and believers is an inevitable result of redefining marriage. A video presentation by some of these scholars is available here. How that conflict will work out may be a matter of debate but its existence is widely understood to be a given.
The California Supreme Court itself has made it abundantly clear that it does not think the Federal or State Constitutions provide a religious exemption to laws mandating identical treatment of same-sex couples or gay and lesbian individuals. In a recent, unanimous, opinion to this effect, the court said a doctor could not invoke his religious beliefs in a lawsuit brought against him because he did not provide an artificial insemination procedure to a woman in a same-sex couple. See North Coast Women's Care Medical Group v. San Diego Superior Court, 81 Cal. Rptr. 3d 708 (Cal. 2008). In its opinion, the court said that even under the legal standard most protective of religious liberty the doctor would lose because the state had a compelling interest in requiring identical treatment of homosexuals. One judge wrote a separate opinion agreeing with the result and identifying the court's same-sex marriage decision as the authority for the proposition that every law must treat same-sex and opposite-sex couples exactly the same. Ibid. at 722 (opinion of Justice Baxter).
Since many churches' religious beliefs do not allow them to provide employment, public accommodations, adoption services and other benefits to same-sex couples, it is not very hard to see that the court's ruling sets up a serious quandary for believers.
Those who are now arguing that “all is well” for religious liberty say that it is not the redefinition of marriage that has caused these changes. In one way they are right, but their argument is also very misleading. It is true that states which have not redefined marriage have significantly interfered with religious liberty in advancing the cause of gay rights. They have relied on state statutes enacted by legislatures. These statutes, though, could be amended to make exceptions for religious groups. When the court redefines marriage, however, it makes the issue a constitutional matter and the court interpretation will trump any statutory exemption and might, as the California Supreme Court ruled, even outweigh other constitutional rights like religious freedom.
This is what the U.S. Supreme Court held in a famous case brought to remove the tax exemption of a religious college, Bob Jones University, which at the time forbade interracial dating. The government argued successfully in that case that the university should have its tax exemption revoked because the government's policy of ending racial discrimination outweighed any other consideration. See Bob Jones University v. U.S. , 461 U.S. 574 (1983)
It is common sense to most of us that racial discrimination is wrong and that a belief in marriage as the union of a man and a woman is a different matter. When the California Supreme Court ruled that marriage had to be redefined, however, they turned the issue of marriage into a civil rights issue and gave official government endorsement to the idea that those who believe in husband/wife marriage are bigots. The Bob Jones case and many other laws teach us that the law does not tolerate those it considers to be bigots.
Proposition 8 would overrule the California Supreme Court's holding about marriage and allow those who believe in marriage to continue that belief without the official stigma of being considered bigots.
The marriage decision will have effects beyond religious liberty. One of the most obvious is that it requires schools to teach students of every age that there is no difference between marriage between a husband and wife and between same-sex couples. California law now requires that students in public schools from kindergarten on must be taught about “Family health and child development, including the legal and financial aspects and responsibilities of marriage and parenthood.” California Education Code 51890 Now that marriage has been officially redefined, any discussion of marriage must include discussions of same-sex marriage. Another provision of the law forbids discrimination in any school program on the basis of “sexual orientation” which reinforces this policy. California Education Code 200
This is not a hypothetical concern. In Massachusetts , the only other state to redefine marriage, this exact situation has arisen. Parents who objected to pro-gay curriculum at their children's elementary school lost their lawsuit seeking an injunction to exempt their children from the material, in part because a federal court said the public schools “ have an interest in promoting tolerance, including for the children (and parents) of gay marriages.” See Parker v. Hurley, 514 F.3d 87 (1 st Cir. 2008).
There are other religious liberty concerns as well. In Canada , where marriage has been redefined, a Knights of Columbus hall in British Columbia was fined for canceling a reception for a same-sex couple's wedding. See Chymyshyn v. Knights of Columbus, 2005 BCHRT 544 (2005). The list could go on.
These concerns do not exhaust the potential harms to which Proposition 8 would respond.
When the California Supreme Court redefined marriage, they did so not only for the small group who might benefit from the change but for every citizen of the State of California . This change means that the law of California now strongly endorses three ideas: men and women are essentially interchangeable, children do not need a mother and father and those who disagree are bigots.
In reality, every healthy human society, across time and cultures, has had some kind of marriage institution to encourage those who might create children to take responsibility for those children and for each other. Marriage is fundamentally about children's needs, not adult desires.
Our society owes children the opportunity, whenever possible, to know and develop a meaningful bond with their own mother and father. Marriage between a man and a woman is the best way to provide this opportunity.
California law now creates intentionally motherless or fatherless families where children will not experience the unique contributions of at least one of their parents.
Decades of social science research has effectively demonstrated that the best arrangement for children's well being is to be raised by their own mother and father who are married to each other. Even married couples that do not have children promote society's concern for children by providing an example to those that do and, by observing their marriage vows, preventing the creation of other motherless or fatherless homes.
Proposition 8 is not about taking people's rights away. It is a simple way to protect marriage. It is also the last chance California voters may have to get their say on this matter.
William Duncan is the director of the Marriage Law Foundation. The views expressed in this article do not necessarily reflect the official position of the Protect Marriage campaign in California or of The Church of Jesus Christ of Latter-day Saints.
