The truth about Religion

The fears about religion and Prop 8 have been myriad and fueled by hysteria. Here's what my favorite con law prof had to say (I also pasted his mentioned op-ed after the comments in his email -- it's lengthy, but it's not yet published, so I can't link to it).

To the argument that same-sex marriages will result in churches losing their tax exempt status or being forced to marry same –sex couples.

This is absolutely false. No one can name a single church in Massachusetts that has lost its tax exempt status or been forced to marry same-sex couples.

The California supreme court’s decision explicitly denied that clergy could be forced to officiate at same-sex marriages. The Court said:

“affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.” 183 P.2d. 384, 451-52 (2008).

Churches are religious associations and their decisions about who may participate in their services and ceremonies is fully protected by the first amendment. In Boy Scouts v. Dale, the Court held that the Boy Scouts had a constitutional right to deny membership to gay scouts. Can anyone seriously doubt that religious congregations would receive at least as much protection than the boy scouts?

If some conflicts do arise in the future (about religious institutions extending health care benefits to the same-sex spouse of an employee, for example), the way to deal with that eventuality is through a religious exemption or accommodation – not by banning same-sex marriage. See my (unpublished) op-ed.

The op-ed:

Proponents of Proposition 8, the constitutional amendment that would eliminate the right of same-sex couples to marry in California, have been arguing that it is necessary to pass this amendment in order to protect religious liberty in our state.

Basically, they are arguing that the right of gays and lesbians to marry and the right of religious communities to follow the dictates of their faith are a zero sum game. Californians have to choose between respecting the right of same-sex couples to marry and protecting the free exercise of religion.

That’s just not true.

As a professor of constitutional law whose area of expertise is church-state issues, I have been working to defend and promote religious liberty for almost 20 years. I’ve helped religious congregations fight land use regulations that burden the operation of their houses of worship. I stood along side Catholic Charities when it challenged a state law requiring Catholic organizations to violate their beliefs by providing insurance coverage to their employees for medical contraceptives. I worked hard (although unsuccessfully) to convince our legislature and governor to adopt a religious freedom restoration act for our state.

I care a great deal about religious liberty, and I can tell you without hesitation that we do not have to unfairly limit the right of same-sex couples to marry to defend religious freedom in our state.

I understand that recognizing the legal right of same-sex couples to marry may create a conflict with the practices of some religious individuals and institutions. That can happen. In a religiously diverse society, it is common for public policies to create conflicts with religious beliefs and practices.

But the appropriate and accepted way to deal with these conflicts is to create accommodations that protect religious liberty in those limited situations where a problem arises -- not to reject the public policy itself in its entirety.

There are so many examples that prove this point that it is hard to understand how anyone could challenge this reality. We respect religious pacifists by allowing conscientious objectors to avoid conscription. But no one suggests that to avoid a conflict with the beliefs of religious pacifists we should disband our military forces.

We understand that laws prohibiting discrimination on the basis of religion or gender in employment can cause a conflict with the hiring decisions of religious institutions. But we do not need to repeal our employment discrimination statutes to protect the Catholic Church from having to hire women as priests or to allow a Protestant Church to hire only Christians to teach Sunday school classes. We create exemptions and accommodations for religious institutions to deal with these problems when they arise.

When public schools hold classes on the Jewish High Holy Days, they cause a conflict for observant Jewish families. But no one thinks that the solution to this problem is to close the schools for all religious holidays. Instead, we grant the children of religious minorities an excused absence so they can practice their faith without penalty.

In all of these cases and countless other, we affirm both the public policy and religious liberty. We reject the false dichotomy that we have to choose one or the other.

But that’s not what the proponents of Proposition 8 are demanding when they seek to eliminate the right of same-sex couples to marry. They aren’t arguing for religious accommodations in those limited situations when recognizing the right of same-sex couples to marry might interfere with the ability of religious individuals and institutions to practice their faith. Instead, they are insisting that same-sex couples must be denied the right to marry – even though in the great majority of circumstances, the marriage of same-sex couples will not interfere in any way with anyone’s religious practice.

That’s neither right nor fair – and it certainly isn’t necessary to protect religious liberty.

Moreover, there’s one other important point the proponents of Proposition 8 don’t seem to understand. If we are going to protect religious freedom in California, we need to create a society and a legal system in which people respect each other’s autonomy and liberty. We don’t have to agree with the way that other people exercise their rights, but we need to respect the fact that each of us wants to be free to make core personal decisions in our lives based on who we are – not on who somebody else wants us to be.

Religious people need to be free to do that. So do gays and lesbians.

If we are going to create a society that recognizes the autonomy and liberty of everyone, regardless of what their religious beliefs or sexual orientation may be, we need to understand that the very best way to persuade our neighbors to respect our rights is to demonstrate that we are willing to respect their rights. If religious people want a secure foundation for protecting religious liberty in California they cannot achieve that goal by insisting on subordinating the rights of same-sex couples. You can’t expect people to value your rights when you devalue the rights of others.

In this election, we can affirm both the right of religious liberty and the right to marry in California. The first step to doing that is to vote “No” on Proposition 8.

Alan Brownstein

Professor of Law

UC Davis School of Law