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  • Same-Sex Marriage and a Level-Playing Field for Religious Argument

    Last week, the evidentiary phase of the trial in Perry v. Schwarzenegger came to an end. Perry is the federal court lawsuit in California that claims, in effect, that the U.S. Constitution contains a right to same-sex marriage.

    Specifically, the lawsuit challenges the constitutionality of Proposition 8, the November 2008 amendment to the California constitution that effectively reversed a California high court decision redefining marriage to include homosexual unions.

    If the claims asserted in this lawsuit prevail, the 45 states that recognize marriage as the union of husband and wife could be forced to make marriage genderless. Even the 30 states that have taken the extraordinary democratic measure of amending their constitutions to protect marriage – all of them since 1998 – could be forced to make marriage genderless.

    The phase of the case that ended last week included testimony from witnesses called in support of or opposition to Proposition 8. Attorneys from the Alliance Defense Fund, a public interest legal association that has played a key role in defending Prop 8, have posted updates on each day of the trial. The “Day 12” update by ADF Senior Legal Counsel Austin R. Nimocks explains what will happen next in the case:

    While the testimonial phase of the trial is finished, the proceedings in San Francisco are not yet complete. Judge [Vaughn] Walker plans to take about a month to review, on his own, the thousands of pages of documents and exhibits that were introduced into evidence during these last two weeks. Then, by Feb. 26, the parties will remit papers which seek to highlight the evidence that they believe support the proposed judgments that they remitted to the court before the trial began. After that, Judge Walker will seek to schedule a time for formal closing arguments.

    Although the case likely will not be decided for several months, several serious issues already have emerged from pre-trial briefs filed by the parties and from the examination and cross-examination of the witnesses proffered by each side. One of the most significant issues concerns the argument made by opponents of Prop 8 that proof of moral or religious support for Prop 8 would make the measure constitutionally suspect or invalid. Certain aspects of this issue have been discussed by Ed Whelan in posts to National Review’s Bench Memos blog here, here, here and here.

    The issue of the proper role of religion and morality in the same-sex marriage debate bears additional analysis. But for now, it can safely be asserted that, no matter what side of the issue one takes, the question of how to define marriage involves an unavoidable moral aspect. Certain law professors who support same-sex marriage have openly admitted this point. More strikingly, some national GLBT activist organizations have now begun to appeal openly to religion in support of judicial and political measures designed to institute same-sex marriage. The Human Rights Campaign, for example, has a “Religion and Faith Program” and reported last summer that Harry Knox, the director of that program, had visited California “to flesh out a plan with California Faith for Equality to mobilize clergy and people of faith for marriage equality.”

    Indeed, one need look no further than the official legislative history of the California same-sex marriage legislation vetoed by Governor Schwarzenegger to learn that “[m]any religious-affiliated groups” have already demonstrated a willingness to get involved in politics when it comes to redefining marriage. Evidence of this sort, which exists in abundance, affirms the understanding, articulated by the U.S. Supreme Court many years ago, that marriage has “more to do with the morals and civilization of a people than any other institution.”

    It would be hypocritical for advocates of same-sex marriage to marshal religion in support of judicial and political measures designed to institute same-sex marriage while at the same time arguing that religious or moral support for marriage as the union of husband and wife is somehow improper, unprincipled, or illegal. Parties on both sides of the marriage debate should fully support the principle that voters are “very much within their rights, when casting their ballots, to consider their own moral and religious views about marriage — or any other subject.”

    Posted in Ongoing Priorities [slideshow_deploy]

    27 Responses to Same-Sex Marriage and a Level-Playing Field for Religious Argument

    1. Brad says:

      I guess marriage and abortion are 2 areas where I'm liberal. As a Christian, I believe God is the only one allowed to judge the actions of another person. It's unfortunate to say, but too few people really hold marriage sacred anymore. Infidelity and divorce are way too common for me to think otherwise. I would welcome anyone who celebrates the importance of marriage. Separate church and state and let the government decide whether to recognize unions.

    2. bluprntguy says:

      One would hope that voters would balance their views of morality with the understanding that in America, we decided long ago that everyone should be treated equally by our laws. By eliminating rights of one distinct group of people, the voters clearly violated that decision and expressed disapproval of a group of people. It is clear that Prop 8 was not about protecting marriage, but was all about keeping rights from a group of people that the voters really just don't like very much.

    3. surg says:

      It is really funny that you post your article as being neutral yet you attack the GLBT community with stating that its controversial their positioning. I think that because your gay or lesbian you still have a right to have some faith and yes religion and marriaged go hand in hand but love has nothing to do with it. Stop being so ignorant and realize that whether you support it or you dont who cares what other people do with their lives.

    4. Kevin says:

      Since all persons of faith do not come to the same conclusion regarding same sex marriage, it stands to reason there would be 2 camps with differing points of virew. Each side will use what it can. If persons of faith have non-faith based reasons for opposing same sex marriage, they will use those points to be proponents for that point of view. It appeares that many people of faith are opposed to homosexuality from a moral point of view, or becuas eof an "ick" factor. Unfotunately, this creates a hostile atmospher for homosexuals, most of whom live normal, unassuming lives, tax paying lives. When poeple of faith are discriminated against or are considered "simple minded", it is an outrage—-why not the same for others?

    5. JeffreyRO5 says:

      I don't like the idea of people voting their faith in a country with a majority Christian population. It makes us non-Christians feel marginalized. When Christianity becomes a minority religion, I wonder how Christians will feel about voting one's faith. The laws of the country are still supreme to religious beliefs. The government can't give some groups rights, but not others.

    6. TimInChgo says:

      Quote: "…the question of how to define marriage involves an unavoidable moral aspect."

      Yes, the question of how to define marriage involves an unavoidable moral aspect. But it is important to remember that a moral aspect is not the same as a religious aspect. The question of how to define CIVIL marriage is a moral question which cannot be defined based on a religious criteria. Like a building permit, a civil marriage license is a legal document which need not have any religious significance at all. It is immoral (and, I think, unconstitutional) to deny gay people the right to a civil marriage license, with all the rights and obligations that come with that issuance.

      Religious marriage, which may or may not conform to the requirements of a civil marriage, is completely exempt from this discussion.

    7. TWJ (Connecticut) says:

      "Parties on both sides of the marriage debate should fully support the principle that voters are very much within their rights, when casting their ballots, to consider their own moral and religious views about marriage — or any other subject.”

      The statement above is certainly true, that voters are within their rights when casting ballots to consider their own moral and religious/non-religious views about marriage. However, the author completely misses the true issue at hand – specifically, that this is a matter of civil rights and equality under the law, and equal rights is not subject to voter approval.

      The issue of marriage equality rights for same-sex couples is no different than the earlier issue of equal rights for inter-racial marriages. In that dispute, many voters also argued that allowing inter-racial marriages violated their personal moral and religious beliefs. The courts determined that there is a higher principle involved – equality under the law for all citizens (not just those whose beliefs are in the majority). The same can be said for women's civil rights (women did not have the right to vote under the USA Constitution), and for black civil rights (the USA Constitution permitted slavery of blacks). Many individuals opposed equal rights for women and blacks based on their personal moral and religious beliefs, but the Courts properly recognized that the higher principle of equal rights for all citizens must be the final authority on these issues.

      The United States of America was founded as a Republic, in which the rights of minorities would be protected from the tyranny of the majority. The system of checks and balances, including an independent judiciary, was created in order to ensure that all citizens would have the means to protect their rights even when other citizens opposed those equal rights on so-called moral or religious beliefs. The Court has both the right and the duty to implement marriage equality, even over the objections of a vocal majority.


    8. Bobbie Jay says:

      The Will of God is upon the Christian faith. Keep same sex out and same sex marriage out of Christian churches. Those that desire this are not children of God as they knowingly go against God's Will.

    9. JB, Texas says:

      Where does it end? If we redefine marriage to include the union of one man and one woman, or two men, or two women, how long before we have to consider marriage between one man and two women? Or one woman and two men? Or two men and three women and a dog? This is one of those areas where "we the people" should have "liberty" to choose whatever social, economic, or religious structure that suits us. Government need not be involved.

      So why is government involved? I can think of two reasons. First, to define a legal structure for the application of divorce and family laws. And second, to define a legal structure for taxation purposes. Why can't the whole divorce thing be handled via contract law? Heck, the laws for protecting children operate regardless of marital status. Why couldn't the laws of equitable separation of property operate the same? And why not reform the tax structure and remove the necessity to define "marriage" for taxation purposes? Seems to me that both sides are fighting on the wrong fronts.

    10. BobPDX says:

      I really couldn't care less about the issue of same sex marriage.

      A man, can commit a triple homicide be sentanced to life and still has the legal right to get married to a woman.

      But a gay man, can't get married to another man.

      This is one of those laws that 20 years from now we will look back on and wonder what they were thinking.

    11. Dennis Social Circle says:

      I believe in the Bible and what is written, my God has seen me through many tuff times and places, I also believe that same sex marriage or not is wrong, just like abortion is wrong. I will vote my faith when the time comes, I will stand up for my beliefs, and do not believe the law of the land is supreme to the Bible and Christan beliefs.

      If one will read the BIble one can see what happened to Sodom, and Gormmoria when this tye of moral state existed. They were destroyed! I guess all the liberals and goodie two shoes will have to find out the hard way.

    12. Chuck Anziulewicz says:

      It is not the courts' job to uphold the precise will of the majority of the people. That's what elections are for. The job of the courts is to uphold the Constitution, regardless of whether the necessary decisions fall in line with the will of the majority. It is up to the judges to determine, without bias from the rest of the population, what constitutes equality under the law, or equal protection. It seems more than obvious to me that to exclude Gays from the institution of marriage is a clear violation of any notion of "equality," and I have yet to see anyone dispute that on a rational level. Therefore, it is not "activism" on the part of judges to declare that Gay and Straight couples should be treated equally under the law, rather it is an example of judges performing their rightful duty.

      Exactly how is allowing Gay couples the exact same legal benefits and responsibilities that Straight couples have always taken for granted going to affect 'traditional marriage?" Marriage equality for Gay couples will have precisely ZERO impact on your life, your marriage, your church, and your children. Your church will never be forced to marry Gay couples, any more than it is forced to marry non-Christian couples. Public schools will not be forced to “teach” about Gay marriage, any more than they are forced to teach about Straight marriage.

      Instead you should ask yourself why law-abiding, taxpaying Gay Americans should be forced to subsidize 1,138 legal benefits and responsibilities that Straight couples enjoy, when we are unable to take advantage of those same incentives to marry? And since when do voters get to decide that the rights that apply to them DO NOT apply to minorities?

    13. MaryAnn- MI says:

      Take religion out of the argument altogether. America was founded as a federal republic, meaning that the states and the federal gov't share power with the larger share of that power belonging to the states or the people. If the people vote to ban homosexual marriage in a state, it is the sovereign right of the people of that state not to have the federal gov't overturn that vote. The 10th amendment states very clearly that "The powers not delegated by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." If homosexual marriage is banned in one state, those people who disagree with that are free to move to another state that does not ban it. People who advocate for the ever expanding power of the federal gov't, for whatever reason, should take a long honest look at history to see where that power inevitably leads a nation. Our federal gov't, over the past several decades has already eroded the 10th amendment to the extent that it controls darn near every aspect of our lives. To give it more power is insane. You do not know what you are asking for. Again- look at history.

    14. DMA (TN) says:

      I believe Abraham Lincoln said it best when he said that…"government of the people, by the people, for the people…" is the best system of government and should not perish from the Earth. That being said, I find it extremely disheartening when the people choose to amend their constitution to create a rule of law that the majority agrees upon can be simply thrown out because of one judgment by a single judge or a panel of judges. Doesn’t this basically render the voice and the will of the people to be useless? Someone earlier posted that…

      “The Court has both the right and the duty to implement marriage equality, even over the objections of a vocal majority…”

      I find this particularly scary as that sounds much more like a dictatorship rather than a democratically elected republic which, last time I checked, was the system of government we claim to live by. If the people of California chose not to allow homosexual marriage, is it not up to the opposition to publicly debate their position, prove their point as valid and worthy of consideration and allow the voters to make up their own minds?

    15. Jeanne Stotler Woodb says:

      The bible says "Judge Not yet thee be judged" If the gov't allows a cival union, so be it, doesn't mean I have to agree, I do not agree with abortion but then do not want to see the return of back alley abortions where so many young women died or became so infected they never could have a child. I believe in a Marriagee blessed in the church and carrying a child to term, if you cannot afford it or for any reason don't want it, put it up for adoption, so many want babies and cannot have them. I still up hold the laws regardless, I have no right to impose my believes on another person.

    16. Chuck Anziulewicz says:


      You write, "If the people vote to ban homosexual marriage in a state, it is the sovereign right of the people of that state not to have the federal gov’t overturn that vote. The 10th amendment states very clearly that the powers not delegated by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. If homosexual marriage is banned in one state, those people who disagree with that are free to move to another state that does not ban it."

      For those who suggest that the issue of marriage is best left up to the states, it's important to remember that the federal government has a vested interest in married couples for the purposes of income taxes and Social Security benefits. From the fed's point of view, it wouldn't do for a couple to be considered married in one state (like Iowa), then magically "UN-married" once they decide to move somewhere else. And a separate federal standards for Gay and Straight couples would conflict with the 14th Amendment.

      The only way to resolve this under your reasoning is to get the federal government out of the marriage business altogether. At the federal level there are 1,138 legal benefits, protections, and responsibilities that are automatically bestowed on married couples. This includes survivor benefits under Social Security.

      According to a statement I recently received in the mail from the Social Security Administration, my married spouse would be eligible for over $1400 per month (after retirement) in the event of my death. I think anyone would agree that $1400 per month is a pretty hefty chunk of change. However, it is money that my significant other would not be eligible for, because we would not be allowed to get married. I would like to provide for the financial well-being of my spouse, just as I'm sure any heterosexual would, but in essence I'm throwing away money on a fund that my partner cannot take advantage to in the event of my death.

      How many married couples do you think would be willing to give up their Social Security benefits, just for the sake to claiming marriage as a "States Rights" institution?

    17. Chuck Anziulewicz says:

      DEAR DMA:

      As has been proven countless times through American history, popular laws are not always constitutional, and vice versa.

      To people like you who suggest that social justice must be reached through the legislative process, rather than through the courts, I would point to the history of racial injustice in this country. While I could choose any number of cases to make my point, I'll start with the most obvious – Brown v Board of Education of Topeka, Kansas. As everyone knows, this is the ruling that essentially reversed the Plessy v Ferguson "separate but equal" doctrine. Without the decision of the court in Brown v Board, it is impossible to say when the schools of America would have begun to integrate, but I believe it is safe to say it would have been much later. At the time, the Brown v Board decision was just as unpopular with certain segments of the population as a decision today would be that grants Gay couples equal marriage rights. Looking back, I think we can all agree that the unpopularity of the decision did not make it wrong.

      When you're dealing with bigotry, a force which runs deeper than many would like to admit, it is often impossible to wait for the "legislative process" to do its work. There is no telling how long it will take a majority of the population to decide, on its own, that it is time to stop discriminating based on sexual orientation. I therefore believe that it is not only the right, but the obligation of the courts to step in and ensure that all citizens are able to enjoy the same rights under the law, as the spirit of the Constitution provides.

    18. Pingback: ADF Alliance Alert » Same-sex “marriage” and a level-playing field for religious argument

    19. Bobbie Jay says:

      Jeanne Stotler, just a mention. You write: The bible says “Judge Not yet thee be judged,” but we do judge, or we wouldn't know the difference between right and wrong. Judging one with the faults of our own is what shouldn't be done. We have to fight this. It is against God's law. It shouldn't be allowed or expected or asked of, of a church or through the government.

      You wrote: You"have no right to impose your beliefs on others," but wait, nor do others have a right to steal money from you to impose their beliefs on you.. I wouldn't uphold any man-made law that was not of the true God's will. Keep the faith!

    20. Tommy, USA says:

      A person that claims to be a Christian and supports same sex marriage needs to reread their bible a little more closely this time. I guess the bible is optional reading in some more liberal churches that seem OK with this concept of gay and lesbian marriages. My bible indicates that it is an abomination for a man to lie with a man and they should be stoned to death. Please read and learn the bible before uttering your wholehearted politically correct agreement with same sex marriage if you profess to be a true Christian. The work “Hypocrite” comes to my mind in grasping the concept of a Christian person agreeing with same sex marriage or even the concept of homosexual conduct. Homosexual conduct should be considered disgusting and distorted not just a life style choice. I guess those Christians that agree with homosexuality have deleted that little abomination comment concerning homosexuality from their version of the bible. Maybe it is not the inspired word or God, but simply a loose guideline that should be adapted for the new age we live in. Come on get with the times man! Sad, very sad that we have lost our way in this country and headed deeper into the pit.

    21. Tspoon Milw. WI says:

      For same-sex couples who "wed" in one of the five states that allow it, many have marriage vows. But according to a stunning New York Times article, "forsaking all others" isn't one of them. Calling infidelity "a gift," several couples are brutally honest about the lack of monogamy in most homosexual "marriages." Just how common is this phenomenon? A study scheduled for release next month from San Francisco State University found that more often than not, "open" marriages aren't the exception to counterfeit marriages; they're the rule.

      The Gay Couples Study followed 556 male partners for three years, and half had "sex outside their relationships, with the knowledge and approval of their partners." Some even had the audacity to say that heterosexuals have a lot to learn from this "evolution of marriage." On the contrary, it only exposes the mockery this movement is making of marriage. They want access to marriage only to destroy what should be its defining characteristic: fidelity! For years, FRC has argued against same-sex "marriage" on these very grounds. Now that the New York Times is confirming the trend, maybe even more people will start to listen.

    22. Ron Derry NH says:

      Marriage can be what ever civilized people would like to define it as…however it has less value to children if anybody can have it as a recognized of bounding two in the symbolism of becoming one.

      Like getting the Nobel Peace prize for no accomplishments, an awarding of a merited item without purpose brings down the importance of that position to all.

      Marriage should be defined as something of value, something belonging to those committing to having and raising children, and be supported by defending it against usurpers who want the award without the merits it requires.

      Otherwise we become as insignificant as the Norwegian Nobel Committee and governed by political purpose over human purpose.

    23. Jefferson says:

      Wow, the homosexual activists are all over this one, just like always. Societies limit freedoms because a society without boundaries is anarchy and ceases to be a society. Those of us who view homosexual behavior as a perversion highly destructive to societal boundaries, and do not want it sanctioned by government, need to stand firm at the ballot box and everywhere else.

    24. lisa (CA) says:

      Dear Tspoon:

      So heterosexual people don't cheat? Your response has to be the most ignorant of all. If someone is going to cheat then it will happen whether they be male, female, hetero, homo, black, or white and for you to imply otherwise is just pathetic

    25. brittani, sacramento says:

      Yay! On stopping prop8!


      TWD: You hit the nail right on the head! So I need not say everything you just said over and over again. Although it is nice to see that there are people who truly understand how great the U.S. constitution is and why we need it and most importantly that it be protected!

      In brief, Dennis Social Circle Ga., your the reason why there is so much hate in this world. Your to ignorant to have your own logic and moral guide. Most of all you need to rely on a ancient book that has been rewritten a million times by men that are only human and can't help but pass personal prejudices when interpret even the most sacred of documents, not saying they did this intentionally, but has that thought ever even crossed your narrow mind?

      I myself am a women of much faith, I believe in everything that is good and moral, I believe that one does need guidance and religion is great for that. With that said, I will never blindly follow the letter of any book, any ones words, or even the law. I believe that is just ridiculous and one who does so may as well join a colt and jump off a bridge.

    27. Ole, N. Ga says:

      I don't see any reason that the government should have any say so in marriage. Any two adults should be able to get a legally recognized license from the properly constituted government agency. Then there should be a required civil service and then pay the marriage penalty taxes "until death do us part". If the couple then wants a religious service sanctioned by their church that is be tween them and their church, but it has no legal standing. It's done this way in other civilized countries.

      I am a 57 yo hetro, very happily married male and I object to gays being exempted from the marriage penalty tax. I want equal protection under the law.

      How long has it been sense mixed race marriages were finally recognized.(June 12 1967 Loving v. Virginia)

      Good Luck

      Happy Marriage to All and to All a Good Life

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