Laura Bunker  

            I love “The Golden State.”  I was raised in Santa Rosa, the all-American town where the movie Pollyanna was filmed.  Like Pollyanna, most of our neighbors attended church every Sunday (albeit different churches) and flew the flag every 4th of July.  My family still lives in California and in 2008 they worked to help pass Proposition 8, which established a state constitutional amendment preserving marriage between a man and a woman.  My mother, father, sister, and brother-in-law walked neighborhood precincts, knocked on doors, called registered voters on the phone, and held “Yes on 8” signs on street corners.  The measure passed, but now my family and the other seven million Californians who voted for Proposition 8 are on trial. They have been sued for the “improper religious views” that motivated their votes (Eastman).

            I realize this is a sensitive issue and that there are some who would label my family and me “discriminatory” or “anti-gay”, but we’re not anti-anyone.  We have friends and family members whom we love and appreciate, who have identified themselves as gay. For five years I worked amicably with three gay men in a hospital laboratory--one of whom was also my supervisor.  One of my good friends in high school, who identified herself as a lesbian, sang with me at my wedding.  And one of my nieces has recently announced she is gay. I value each of these people and their unique place in my life.  But I also value my religious beliefs and my freedom to exercise them in public even though they may offend some people. 

            Because of this, when the California Supreme Court overruled existing state law and recognized same-sex marriage in May 2008, my family and I--and thousands of other concerned citizens--joined the Proposition 8 campaign to overturn that ruling with a state constitutional amendment. We were gratified in November when over seven million people voted in favor of Proposition 8, and it passed with 52% of the vote.  But in January 2010, the Prop 8 opponents literally “made a federal case out of it” and took the people of California to court. While the trial first appeared to be about marriage, a larger issue soon began to emerge--against religion.  As Mathew Staver, director of the Liberty Center for Law and Policy in Virginia observed, “What has struck me is that the plaintiffs have tried to put Christianity on trial rather than Prop 8”  (Staver qtd in Lindenberger).    

            Perry v. Schwarzenegger, or the Prop 8 trial as it is commonly known, is a huge, landmark trial.  It is the first marriage case in the history of our nation where “the thoughts, motivations, and personal beliefs” of the voters are on trial for “improper intent” (Pugno,  Ferriss, Wickman).  Did the seven million voters who voted for Prop 8 have a right to let religious beliefs influence their vote?  Or were their religious motives “irrational,” discriminatory, and unconstitutional?  The stakes are high in this historic case with respect to both traditional marriage and religious freedom.  The Prop 8 trial could change religious freedom as we know it in America. If the ruling to overturn Proposition 8 is upheld, and marriage is redefined in California to include same-sex couples, it could threaten the free exercise of religion throughout the United States.

Brief History and Explanation

            Perry v. Schwarzenegger is a federal lawsuit challenging the constitutionality of  Proposition 8.  Two gay couples are the plaintiffs, represented by the “legal dream team” of Ted Olson and David Boies--the famous attorneys who opposed each other when they represented George W. Bush and Al Gore in the 2000 presidential election legal battle (Richardson).  The job of defending the California voters would normally have fallen to California Attorney General Edmund G. Brown, but “in this case he refused, citing his strong opposition to the initiative” (Richardson).  Therefore, the pro-marriage coalition had to find--and fund--their own legal counsel.  The Prop 8 legal defense team was led by Charles Cooper, former assistant attorney general under President Reagan, and included attorneys from his law firm and the Alliance Defense Fund, as well as Andy Pugno, General Counsel for the “Yes on 8” campaign(Richardson, Prentice). 

            The evidence portion of the trial took place in January of 2010, and was presided over by U.S. District Court Judge Vaughn Walker.  Seven months later on August 4, 2010  Judge Walker overturned Proposition 8, declaring it unconstitutional. However, the case is still making its way back and forth between the California and Federal courts, and people across the nation are still wondering how it may affect our country.  First, it could change the definition of marriage throughout America.  As one conservative writer explained, “The trial’s implications for marriage are enormous.  If U.S. District Court Chief Judge Vaughn Walker declares that Proposition 8 violates the U.S. Constitution . . . traditional marriage laws in every state will be vulnerable to federal legal challenges” (Richardson).  In other words, if California’s marriage amendment is overturned, the marriage laws and amendments in other states could also be challenged in federal court and overturned.   Secondly, if this case is ultimately successful, it could undermine every citizen’s fundamental right of “freedom of religion” in America. 

Freedom of Religion:  What it is and What it is not

            The First Amendment of the Constitution guarantees, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (US Constitution).  Dallin Oaks, former Utah Supreme Court Justice, states that the free exercise of religion is accepted by many legal experts as “a cornerstone of American democracy” (Oaks, section IV).  However, there is a troubling movement going on right now to change this paramount “freedom of religion” into “freedom of worship.”  Many world leaders, including President Obama have used the new phrase “freedom of worship” instead of “freedom of religion” (Samelson).  What is the difference? 

            Freedom of religion includes “both the right to choose religious beliefs and affiliations and the right to exercise or practice those beliefs” (Oaks, section IV). Freedom of religion is the right to live according to one’s religious dictates, including the right of Jews to keep kosher, Muslim women to wear headscarves, and LDS missionaries to proselytize (Samelson, Weigel, Christofferson qtd in Lloyd).  Freedom of religion also includes the right of individuals to exercise their personal religious beliefs in the workplace. For example, because of religious beliefs, a nurse may choose not to participate in an abortion, or the owners of a bed-and-breakfast may decline to have a same-sex couple stay overnight together in their home.  In addition, Francis Cardinal George, President of the U.S. Conference of Catholic Bishops, points out that freedom of religion also means that “religious groups as well as religious individuals have a right to exercise their influence in the public square” (George, p. 4).  Thomas Farr, Senior Fellow at the Berkley Center for Religion, Peace, and World Affairs, concurs that Religious freedom “includ[es] the right to engage in the political life of a nation” through individual or group effort (Farr).

            On the other hand, “freedom of worship” infers some government control. For instance, “Lenin permitted freedom of worship. . . but not freedom of religion” (George, p. 4). Individuals are still able to privately practice their religious beliefs in their chapels and homes, or as Cardinal George puts it, “as long as you don’t make anybody else unhappy” (George, p. 4), but the government determines how church members exercise those beliefs in public. Specifically, if the government decided that same-sex marriage was a “good” thing worth protecting, then the above mentioned religious bed-and-breakfast owners would have little choice but to comply with the request if they wanted to avoid a lawsuit (Duncan). Religious people would feel social pressure to keep their private values to themselves as they go about their public business.

            One example of government-controlled “freedom of worship” is already happening in Massachusetts, where same-sex marriage became law in 2004. In 2005 and 2006, several Christian parents in Lexington were disturbed when their children were taught about same-sex marriage in their kindergarten and second grade classrooms, without the parents’ knowledge.  When one of the fathers pressed the school principal for the option to remove his child from these lessons, he was arrested and spent a night in jail (McElroy). The parents filed a lawsuit, but “both the district court and the Court of Appeals ruled against them, stating that parents had no right to be notified of this instruction or to remove their children from class while gay marriage was being taught” (Prentice).  The court declared that “the state’s interest in educating public school children about gay marriage outweighed the religious freedoms and parental rights of parents who object to same-sex marriage on moral grounds” (Prentice).  Essentially, the Massachusetts government determined that gay marriage was a “good thing” to be protected over the religious values that the parents thought were a “good thing.” As a result, parents in that state cannot currently opt their children out of classroom instruction regarding gay marriage.

            In addition to impacting one’s daily affairs, “freedom of worship” would also restrict religious participation in social and political issues.  Members of churches might not be able to fully participate in political dialogue about social or cultural rights (Wickman  p. 5).  Whether or not the church members use religious language in their arguments, just defending traditional marriage could make them “suspect” for being “irrational” or discriminatory (Duncan).  In a way, the Perry v. Shwarzenegger trial has already begun this scenario.  Even though my family and the vast majority of pro-marriage citizens used social science and legal rationale to encourage people to vote for Proposition 8, they are now on trial in federal court simply because many of them were members of churches. 

            The difference between freedom of religion and “freedom of worship” is who determines what we value--the people or the government.  Andy Pugno, a defense attorney in the Prop 8 trial pointed out, “The controlling legal issue [here] is not whether homosexual marriage is good or bad, but rather whether the people have a right to decide what is best” (Pugno qtd in Prentice).  Judge Walker’s ruling to overturn Proposition 8 was essentially a ruling that government has the right to decide what is best, taking America one step closer to “freedom of worship,” and away from freedom of religion.

How the Same-Sex Marriage Debate has Already Impacted Freedom of Religion

            Even before the Prop 8 trial began, the same-sex marriage debate was chipping away at religious freedoms.  Advocates for same-sex marriage claim that “homosexuality is an immutable characteristic” (Eastman), and that sexual orientation and gender identity should become the new civil right, along with race, color, sex, national origin, disability, age, and religion (Human Rights Campaign).  However, making homosexuality a civil right would ironically create two conflicting protected classes: sexual orientation and religion.  Can the law give “equal” protections to two opposing groups?  Can one class’s rights trump another?  Apparently so.  Even without having official “protected class” status, gay rights are challenging religious rights in courtrooms and classrooms across the nation, “and so far, the religious groups are losing” (Hagerty).

            For example, when same-sex marriage became legal in Massachusetts, state law required Catholic Charities adoption services to place children with same-sex couples. Catholic Charities tried to exempt themselves from this requirement, but lost the legal battle.  As a result, rather than conform to a law that conflicted with their religious beliefs, in 2006 they decided to close their doors (Hagerty).   A California gynecologist was sued by his patient when he declined to perform an in vitro fertilization on a lesbian patient because of his religious beliefs.  In 2008 the California Supreme Court ruled against the doctor, suggesting that he “take up a different line of business” (Hagerty, Salmon).  A Christian photographer in New Mexico who refused to photograph a gay couple’s commitment ceremony, was sued and forced to pay $6,637 to cover the lesbian couple’s legal fees (Hagerty, Salmon).  When a New Jersey Methodist group declined to let a gay couple use its beachside pavilion for their civil union ceremony, the church lost its property tax exemption (Hagerty, Salmon).  A graduate student in a Counselor Education Program at Augusta State University in Georgia, was recently told to change her religious beliefs on homosexuality, or be expelled from the program (Miller).  And in Colorado, a youth minister actually sued her own church for teaching that homosexuality is a sin and incompatible with scripture (Severino, p. 971).   Although this particular case was dismissed, one is left to wonder how long it will take before a lawsuit against a church’s teachings is upheld. 

            The trend against religion is clear.  In 2007, Roger Severino, Legal Counsel and Chief Operations Officer for the Becket Fund for Religious Liberty observed, “The movement for gay marriage is on a collision course with religious liberty. . . resulting in pervasive church-state conflict, and a substantial chilling of religious expression.  The chilling effect that either litigation or the threat of litigation would have on religious liberty is real and immediate”

(Severino, p. 979).  Ultimately more and more religious people will keep quiet and compliant, for fear that anything they say or do will be used against them in a lawsuit.

How the Prop 8 Trial Further Threatens Religious Freedom

            The Prop 8 trial process further threatens religious freedom in at least two ways.  First, the plaintiffs “unfairly attacked religion” (Jones Feb. 2010) during the trial, turning the courtroom into a forum to advance their message.  They argued that it was not right for voters to let religious beliefs influence their vote or persuade other votes, and that such religious motives legally qualify as discrimination.  In his opening arguments, Ted Olsen (one of the lead attorneys against Prop 8) asserted, “Proposition 8 enacted an utterly irrational regime to govern entitlement  to the fundamental right to marry . . . . There is no rational justification for this unique pattern of discrimination” (American Foundation, Recent News).  Olsen’s co-counsel David Boies stated that “the religious majority should not be able to use the law to impose their principles on a religious minority” (Raum qtd in Jones, Feb. 2010).

            The trial then progressed into an “outrageous. . . [and] systematic attack of orthodox religious beliefs” (Raum qtd in Jones, Feb. 2010). Professor Gary Segura of Stanford University was called to the stand and testified in behalf of the plaintiffs, “I think that religion is the chief obstacle for gay and lesbian political progress” (American Foundation, Hearing Transcripts, p. 1565).  Biased sound bites such as “utterly irrational . . . discrimination,” “religious majority imposing their principles,” and “religion is the chief obstacle” are now public record from a high-profile case, and are likely to be quoted in other forums throughout America to discredit religion.  Regardless of the ultimate outcome, the plaintiffs successfully used the Prop 8 trial to deliver their anti-religion message. 

            Secondly, the plaintiffs are trying to prove that the religious beliefs of the voters were “irrational”, discriminatory, and unconstitutional.  As William C. Duncan, director of the Marriage Law Foundation clarifies, “they are trying to make the link that same-sex discrimination and racial discrimination are the same thing.”  Elder Lance B. Wickman, General Counsel for the Church of Jesus Christ of Latter-day Saints further explains, “Earlier cases have chased prayer and religious symbols from the square. Now, this case would drive religious opinions off as well. . .  It threatens to eliminate any discussion of religion in the public square when social or cultural rights are at issue” (Wickman, p. 4, 6).  In short, private religious values that conflict with gay rights would have to be kept silent in public. 

Status of the Perry v. Schwarzenegger Trial

            On August 4, 2010,  Judge Vaughn Walker rendered his landmark ruling striking down Proposition 8, declaring it “unconstitutional under both the Due Process and Equal Protection Clauses” (US District Court Findings, p. 136 ).  However, as a “procedural courtesy to the court of appeals,” he also issued a temporary stay, prohibiting California same-sex weddings for two weeks (Heining).  The Prop 8 legal team then appealed to the 9th Circuit Court, who extended the stay indefinitely while the case is pending.  Prop 8 General Counsel Andy Pugno observed, “California voters spoke clearly on Prop 8, and we’re glad to see their votes will remain valid while the legal challenges work their way up through the courts” (Pugno, Aug 2010).

            On December 6, 2010, two issues were argued before the 9th Circuit Court of Appeals: the merits of Proposition 8, and whether its defense team had “standing” before the Court--whether they had the right or authority to represent the state in the appeal (Samuel). This is ironic because they only stepped in after Governor Schwarzenegger and Attorney General Brown refused to defend the case. In January 2011, the 9th Circuit Court sent this question of “standing” back to the California Supreme Court, who ruled unanimously on November 17, 2011 that the Prop 8 defense team had legal standing to defend the amendment in court. On December 8, 2011, the 9th Circuit Court of Appeals heard oral arguments on Proposition 8, but a final ruling has not been rendered yet. 

            All sides agree that no matter what happens next, Perry v. Schwarzenegger is expected to eventually come before the U.S. Supreme Court (Prentice, Dolan, Lindenberger).  A Supreme Court decision legalizing same-sex marriage would trump state marriage laws similar to the way Roe v. Wade legalized abortion throughout the nation in 1973 (Richardson). 

            An interesting development in the Prop 8 trial process occurred on Feb 7, 2010, when a San Francisco newspaper unveiled the fact that Judge Walker is himself gay (Matier).  On April 6, 2011 Judge Walker himself confirmed that “he was in a ten-year relationship with a physician” (LeVine).  Because of the potential conflict of interest, some people called for Judge Walker to recuse himself from the case (Jones Aug. 2010, Whelan).  He did not recuse himself, but he did retire at the end of February, 2011, and Judge James Ware is the new Chief Judge over the Northern California District Court.

Summary and Conclusion

             Perry v. Schwarzenegger is the culmination of a long-standing debate of gay-rights versus freedom of religion.  If this trial reaches the Supreme Court and is ruled favorably, homosexuality and same-sex marriage will become the new protected class or civil right in America.  However, the “equal rights” demanded by the gay-rights movement translate into “more equal” than the religious rights of other citizens. Religious citizens across the nation are already feeling the pain of losing their freedoms, their parental rights, their jobs, and their savings, and if same-sex marriage becomes law these legal battles will increase. This ruling would also stigmatize religious citizens as discriminatory, undermining their legitimate voice in public debate and potentially restricting public religious practices including proselytizing.

             In essence our government would be forcing a new government-imposed value on all Americans--that sexual freedom is more important than religious freedom. This would limit citizens’ free exercise of religion in the public square, conflicting with the First Amendment and reducing our freedom of religion into government-controlled “freedom of worship.”  In this sense, Perry vs. Schwarzenegger would quite literally be the beginning of the end of religious freedom as we know it in America.

             I still love California.  But now my family and I worry that it has started a legal process that threatens the things that matter the most to us: our definition of family and our freedom to fully exercise our faith.  Even Pollyanna would have been appalled.  When one powerful person in her town was controlling everyone in her community--even the local minister--Pollyanna reminded them, “No one can own a church.”  

            Not even a government.

Works Cited

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US Constitution, Amendment 1

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Wickman, Lance B. “The Threatened Demise of Religion in the Public Square.” J. Reuben Clark Law Society. Salt Lake City. 11 Feb. 2010. Lecture. Web. 4 Jun. 2010. <http://newsroom.lds.org/article/the-threatened-demise-of-religion-in-the-public-square-talk-given-by-elder-lance-b.-wickman-at-j.-reuben-clark-law-society>

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