Why the Prop 8 ruling scares conservatives
Daniel Burke, Religion News Service
August 09, 2010

Why the Prop 8 ruling scares conservatives

Why the Prop 8 ruling scares conservatives
Daniel Burke, Religion News Service
August 09, 2010

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.

Abolitionists, anti-abortion

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.”