When U.S. District Judge
Vaughn Walker struck down California’s Proposition 8 on Aug. 4, he said voters’motivation
for outlawing gay marriage was clear.
“The evidence shows
conclusively that moral and religious views form the only basis for a belief
that same-sex couples are different from opposite-sex couples,” Walker wrote in
his sweeping, 136-page decision.
“These interests do not
provide a rational basis for supporting Proposition 8.”
Religion, in Walker’s
reasoning, amounts to a “private moral view,” which should not infringe upon
the constitutional rights of others.
While some legal scholars
say Walker’s decision lands on firm legal ground — a law must advance a secular
purpose to pass constitutional muster — some religious leaders accuse the judge
of trying to scrub faith from the public square.
“Judge Walker claimed to
read the minds of California’s voters, arguing that the majority voted for
Proposition 8 based on religious opposition to homosexuality, which he then
rejected as an illegitimate state interest,” R. Albert Mohler, president of
Southern Baptist Theological Seminary, wrote in an online column.
“In essence, this
establishes secularism as the only acceptable basis for moral judgment on the
part of voters,” Mohler said.
On Thursday, Prop 8’s
supporters filed an appeal of Walker’s decision. Jim Campbell, an attorney with
the Alliance Defense Fund, a Christian law firm involved in the litigation,
said the religious freedom argument will play an important role as the case
moves up the federal judicial ladder — including, potentially, the Supreme
“At bottom, our strategy
here is, and has always been, that in this country we should respect the rights
of the people when they do what they have always done: vote based on their
religious and moral convictions,” Campbell said.
activists, and civil rights activists have all been motivated by personal
faith, Campbell argued. “To be blunt, we felt (Walker’s decision) was an
all-out attack on religion.”
Walker did note, however,
that no religion will be forced to perform same-sex weddings.
Howard Friedman, an emeritus
law professor at Ohio’s University of Toledo, said Walker is not attacking
religion per se; he is just not giving religious expression any special
“He’s basically saying that
a private moral view isn’t a rational basis for legislation,” said Friedman,
who writes the popular “Religion Clause” blog. “Case law goes both ways on
that. There are certainly some cases that say a merely moral view isn’t enough
to support legislation; on the other hand, there are some cases that talk about
laws being a moral view on society.”
Walker’s reasoning relies,
in part, on a 1996 Supreme Court decision that struck down an anti-gay law in
Colorado, Friedman said. That decision, written by Justice Anthony Kennedy —
who’s considered a key swing vote on the high court — invalidated laws grounded
in “animosity toward the class of persons affected.”
Walker devotes several pages
in his ruling to identifying religion as a prime source of anti-gay animus,
listing examples from the Vatican and the Southern Baptist Convention, and
noting that 84 percent of weekly churchgoers voted in favor of Prop 8,
according to a CNN exit poll.
As if to prove Walker’s
point, Los Angeles Cardinal Roger Mahony released a statement on Wednesday that
said, “Those of us who supported Prop 8 and worked for its passage did so for
one reason: We truly believe that marriage was instituted by God for the
specific purpose of carrying out God’s plan for the world and human society.
Still, some religious
leaders take issue with Walker’s conclusion that “religious beliefs that gay
and lesbian relationships are sinful or inferior to heterosexual relationships
harm gays and lesbians.”
“If religion is considered
the chief obstacle to gay and lesbian political progress, then it would seem to
follow that the state has an obligation to remove that obstacle,” said R.R.
Reno, a senior editor at First Things, a Catholic journal based in New York.
“That’s not going to happen,
because the First Amendment protects religious expression,” but it could lead
to a sidelining of faith in political debate, Reno said.
Sister Mary Ann Walsh, a
spokeswoman for the U.S. Conference of Catholic Bishops, says Walker is wrong
on the law and the church’s theology. The Roman Catholic Church holds that
homosexuality is not sinful in itself, but that homosexual acts are.
“Freedom of religion and
freedom of speech allow us to speak without his deeming us harmful,” Walsh
said. “Our teaching is our teaching.”