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Back to Section One | Back to Arts & Entertainment
posted Friday, September 10, 2010 - Volume 38 Issue 37
The constitutionality of religious freedom and Gay marriage
Section One
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The constitutionality of religious freedom and Gay marriage

by Shaun Knittel - SGN Associate Editor

The fight over the constitutionality of California's Proposition 8 rages on. Last month, U.S. District Judge Vaughn Walker ruled in Perry v. Schwarzenegger that defining marriage as the union of one woman and one man in the California Constitution does, in fact, violate the U.S. Constitution. Until that day, every court had rejected the argument that there is a 'right' to same-sex marriage under the U.S. Constitution.

The legal decision is just one small blip on the marriage equality radar. Immediately after Judge Walker's August 6 ruling, some religious leaders warned that it could wind up putting a gag on Christians speaking out about homosexuality - a gag that some conservative denominations say they will not take.

What has got these denominations so upset? One portion of Judge Walker's 136-page decision where he found that "Religious beliefs that Gay and Lesbian relationships are sinful or inferior to heterosexual relationships harm Gays and Lesbians."

Mathew Staver, dean of the Liberty University Law School and chairman of the Orlando-based Liberty Counsel, said Walker's finding is shocking, and, if upheld, would have ominous implications for Christians wanting to present the Bible's position on homosexuality.

"It's an astounding statement by a judge, and if that finding were to be upheld, it would criminalize Christian beliefs, because the Bible and Christian beliefs historically have clearly indicated that homosexuality is sex outside of marriage - and is contrary to God's design," Staver told CNSNews.com. "For this judge to say that Christian beliefs contrary to homosexuality are actually harmful - what that essentially says is that if that's the case, then you've got to change your religious beliefs, and if you don't, you're going to be penalized as a result. That is a very dangerous aspect of this court decision."

Staver declined an interview by Seattle Gay News. However, Mary McAlister, senior litigation counsel for Liberty Counsel, commented, "This is a classic case of judicial activism. The Constitution is unrecognizable in this opinion. This is simply the whim of one judge. It does not reflect the Constitution, the rule of law, or the will of the people. I am confident this decision will be overturned."

Judge Walker is said to have based his finding that religious beliefs "hurt" Gays and Lesbians on testimony of witnesses produced by the plaintiffs and on quotations from documents from the Roman Catholic Church, the Southern Baptist Convention, the Evangelical Presbyterian Church, the Orthodox Church, and the Lutheran Church-Missouri Synod.

SENATE BILL 906
James Esseks, director of the American Civil Liberties Union (ACLU) LGBT Project, told SGN, "The Prop 8 case is about civil marriage - the state granting marriage licenses to people. The fact that the state marries some people, or even divorces others, does not mean any religion has to respect either the marriage or the divorce."

Esseks added that the ACLU "values religious freedom, and if allowing same-sex couples to marry unconstitutionally interfered with religious freedom, we'd be the first to sue to vindicate those religious freedom rights."

Denis Dison, Gay & Lesbian Victory Fund vice president of external affairs, said that the argument over whether or not Prop 8 should be decided based upon religious fervor would produce "false arguments."

"Many LGBT Americans are religious, and many mainstream religious denominations are welcoming and accepting of their LGBT brothers and sisters," he told SGN. "Last month, openly Gay California State Senator Mark Leno spearheaded a bill that specifically protects religious institution and clergy who do not want to marry same-sex couples. That's a clear sign of our community's commitment to freedom of religion."

On August 19, the California Assembly passed Senate Bill 906 that clarifies that no clergy would be forced to perform any civil marriage that is against his or her belief system.

The Civil Marriage Religious Freedom Act, authored by Leno, reaffirms the separation of church and state. In addition to strengthening religious freedom in state statute, SB 906 also clarifies the difference between civil and religious marriage in state law and protects churches from losing their tax-exempt status if they refuse to perform any civil marriage.

"This bill simply affirms that California is a diverse state, and that we can all co-exist and make space for each others' beliefs without compromising the tenets of any religious group or individual," said Senator Leno. With the recent federal court ruling, we know that marriage for same-sex couples in California is on the horizon. Under the Civil Marriages Religious Freedom Act, churches and clergy members who fear their religious views are threatened by marriage equality will have clear and solid protections under state law. In addition, churches that welcome same-sex couples will continue to fully recognize those families within their faith."

THE "FREEDOM" TO BELIEVE
Opponents of marriage equality have continually claimed that allowing same-sex marriage couples to marry will force clergy to violate the tenets of their faith. Even though many of the claims have been deemed false, the hate speech and fear that some statements perpetuate have the potential to do harm.

Still, with all of the anti-Gay and anti-marriage-equality speech out there, the LGBT community has found solace in many open and affirming congregations. One such ministry is the Metropolitain Community Churches (MCC). Formed in 1968, MCC became the world's first church group with a primary, positive ministry of LGBT persons.

Reverend Dr. Neil G. Thomas told SGN there are no legal dangers for ministries to become involved in litigation such as the Prop 8 federal case. "The law enables churches to use their 501(c)(3) status to educate and advocate around public policy. It is able to comment on propositions and propose ways in which its members might vote on propositions."

Reverend Thomas says that MCC does not believe that Judge Walker's decision would pose a threat to religious freedoms. "Proposition 8 specifically had language that protected religious organizations from marrying anyone whom their communities did not want to marry, as it is now. A Roman Catholic does not permit divorcées to marry in their church and Mormons only allow other Mormons to marry one another. A religious organization has always had the right to refuse or permit a religious marriage. We are talking about civil marriage."

Religious freedom is the freedom to assemble for worship, to be able to promote one's religious views. Religious freedom, like all freedoms, has some limitations, based on the laws of the land. According to Reverend Thomas, hate speech should be one of those limitations.

"There are many dangers, specifically the increased danger of violence, both religious and physical. There is a mindset among many that it is acceptable to harass, oppress, and abuse LGBT people," Thomas told SGN. "There has been an increased statistic in the case of hate crimes which could have a link to increased anti-Gay rhetoric from conservative ministries, and it has been suggested that this is justified because one is doing 'God's work.' Suicide among teenage youth dealing with sexuality issues has increased, and this increase is mostly among youth who are, or whose families are, religious conservative. Many LGBT persons continue to grapple with their sexuality and spirituality as a direct result of their religious experience and leads to addiction, low self-esteem, and destructive behaviors associated therein."

"Hate begets hate. Injustice begets injustice. This is what today's church is all too often known for," said author Dr. Jallen Rix, who suffered at the hands of the ex-Gay movement leaders when he was in college. "Of course, no one is perfect, and as humans we all have our weaknesses and mistakes, but sadly, the church, it seems, has long forgotten that love begets love."

Rix told SGN that Judge Walker's ruling does not pose a threat to religious freedom at all. "Proposing this is a fear-based scare tactic by fundamentalists, which are actually the real threat to religious freedom. Christian fundamentalists want to impose their beliefs about marriage on everyone in this country - even to the extreme of trying to get their views incorporated into the U.S. Constitution."

"Judge Walker is simply upholding the right for everyone to be treated justly and fairly under the law," he added. "What churches decide to do behind their own closed doors is their business and their American freedom as citizens, but no one has the right to impose their religious views on anyone else."

Rix says that religious freedom is the American standard that anyone can believe and behave in accordance to their beliefs. "Where it gets really subtle is the 'freedom' part. When children are brought up in a particular religious belief system, have they ever really been given the 'freedom' to choose what they believe in? Most times not, and that's too bad. I think there are a lot of people who go through life believing certain things that have been spoon-fed to them and they've never taken the time to really understand spirituality and decide for themselves what they believe. That's not freedom of religion. That's unconscious conformity."

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