December 9, 2011
Perry v. Schwarzenegger: The Beginning of the End of Religious Freedom in America
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
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.
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
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”
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.
of Religion: What it is and What it is
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.
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”
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”
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.
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.
of the Perry
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
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.
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