**

William C. Duncan

Most people are rightfully leery of buying something just because the seller touts
his or her personal religious activity. In California, right now, there are groups
working to defeat Proposition 8, the proposed constitutional amendment that would
protect the institution of marriage as the union of a man and a woman. Part of their
sales pitch is their religious identity.

They feel the need to advertise this because their own church, The Church of Jesus
Christ of Latter-day Saints, has officially announced its support for the common-
sense measure that would reverse the actions of a bare majority of the California
Supreme Court that ruled in May that a hitherto unknown and still unwritten
provision of that state’s constitution required that marriage be redefined to include
same-sex couples.

Most recently, an attorney and a group calling itself “Mormons for Marriage” have
been attacking the idea that redefining marriage in California creates possible
negative ramifications for religious liberty in this state. They have attempted to
refute an anonymous document that lists some of these potential ramifications.
They say the document misconstrues legal precedents and that, actually, there is
no reason to worry that churches and religious believers will be harmed in any way
if California redefines marriage.

Anyone can read the LDS Church’s official statement on the issue, “The Divine
Institution of Marriage,” published on August 13, 2008 and available on the Church’s
website [link: http://newsroom.lds.org/ldsnewsroom/eng/commentary/the-divine-
institution-of-marriage] for a careful and persuasive examination of this question
that concludes that the redefinition of marriage does bode ill for religious liberty.
Interestingly, one of the attacks cites to the Church statement to argue that the
debate over marriage should be civil (a point on which all hopefully agree) but does
not note this section.

In addition, eminent religious liberty scholars who have a variety of opinions on the
subject of same-sex marriage all agree that a conflict between the state and
religious organizations and believers is an inevitable result of redefining marriage
[link: http://www.amazon.com/Same-Sex-Marriage-Religious-Liberty-
Conflicts/dp/074256326]. How that conflict will work out may be a matter of debate
but its existence is widely understood to be a given.

The California Supreme Court itself has made it abundantly clear that it does not
think the Federal or State Constitutions provide a religious exemption to laws
mandating identical treatment of same-sex couples or gay and lesbian individuals.
In a recent, unanimous, opinion to this effect, the court said a doctor could not
invoke his religious beliefs in a lawsuit brought against him because he did not
provide an artificial insemination procedure to a woman in a same-sex couple. See
North Coast Women’s Care Medical Group v. San Diego Superior Court, 81 Cal. Rptr.
3d 708 (Cal. 2008). [link:
http://www.courtinfo.ca.gov/opinions/documents/S142892.PDF] In its opinion, the
court said that even under the legal standard most protective of religious liberty the
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doctor would lose because the state had a compelling interest in requiring identical
treatment of homosexuals. One judge wrote a separate opinion agreeing with the
result and identifying the court’s same-sex marriage decision as the authority for
the proposition that every law must treat same-sex and opposite-sex couples
exactly the same. Ibid. at 722 (opinion of Justice Baxter).

Since many churches’ religious beliefs do not allow them to provide employment,
public accommodations, adoption services and other benefits to same-sex couples,
it is not very hard to see that the court’s ruling sets up a serious quandary for
believers.

Those who are now arguing that “all is well” for religious liberty say that it is not the
redefinition of marriage that has caused these changes. In one way they are right,
but their argument is also very misleading. It is true that states which have not
redefined marriage have significantly interfered with religious liberty in advancing
the cause of gay rights. They have relied on state statutes enacted by legislatures.
These statutes, though, could be amended to make exceptions for religious groups.
When the court redefines marriage, however, it makes the issue a constitutional
matter and the court interpretation will trump any statutory exemption and might,
as the California Supreme Court ruled, even outweigh other constitutional rights like
religious freedom.

This is what the U.S. Supreme Court held in a famous case brought to remove the
tax exemption of a religious college, Bob Jones University, which at the time forbade
interracial dating. The government argued successfully in that case that the
university should have its tax exemption revoked because the government’s policy
of ending racial discrimination outweighed any other consideration. See Bob Jones
University v. U.S., 461 U.S. 574 (1983) [link:
http://supreme.justia.com/us/461/574/case.html]

It is common sense to most of us that racial discrimination is wrong and that a belief
in marriage as the union of a man and a woman is a different matter. When the
California Supreme Court ruled that marriage had to be redefined, however, they
turned the issue of marriage into a civil rights issue and gave official government
endorsement to the idea that those who believe in husband/wife marriage are
bigots. The Bob Jones case and many other laws teach us that the law does not
tolerate those it considers to be bigots.

Proposition 8 would overrule the California Supreme Court’s holding about marriage
and allow those who believe in marriage to continue that belief without the official
stigma of being considered bigots.

The marriage decision will have effects beyond religious liberty. One of the most obvious is
that it requires schools to teach students of every age that there is no difference between
marriage between a husband and wife and between same-sex couples. California law now
requires that students in public schools from kindergarten on must be taught about “Family
health and child development, including the legal and financial aspects and responsibilities
of marriage and parenthood.” California Education Code 51890 [link:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=edc&group=51001-
52000&file=51890-51891] Now that marriage has been officially redefined, any discussion
of marriage must include discussions of same-sex marriage. Another provision of the law
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forbids discrimination in any school program on the basis of “sexual orientation” which
reinforces this policy. California Education Code 200 [link:
http://caselaw.lp.findlaw.com/cacodes/edc/200-201.html]

This is not a hypothetical concern. In Massachusetts, the only other state to redefine
marriage, this exact situation has arisen. Parents who objected to pro-gay
curriculum at their children’s elementary school lost their lawsuit seeking an
injunction to exempt their children from the material, in part because a federal court
said the public schools “have an interest in promoting tolerance, including for the
children (and parents) of gay marriages.” See Parker v. Hurley, 514 F.3d 87 (1st Cir.
2008). [link: http://www.ca1.uscourts.gov/pdf.opinions/07-1528-01A.pdf]

There are other religious liberty concerns as well. In Canada, where marriage has
been redefined, a Knights of Columbus hall in British Columbia was fined for
canceling a reception for a same-sex couple’s wedding. See Chymyshyn v. Knights
of Columbus, 2005 BCHRT 544 (2005). [link:
http://www.bchrt.bc.ca/decisions/2005/pdf/Smith_and_Chymyshyn_v_Knights_of_Col
umbus_and_others_2005_BCHRT_544.pdf] The list could go on.

These concerns do not exhaust the potential harms to which Proposition 8 would
respond.

When the California Supreme Court redefined marriage, they did so not only for the
small group who might benefit from the change but for every citizen of the State of
California. This change means that the law of California now strongly endorses three
ideas: men and women are essentially interchangeable, children do not need a
mother and father and those who disagree are bigots.

In reality, every healthy human society, across time and cultures, has had some
kind of marriage institution to encourage those who might create children to take
responsibility for those children and for each other. Marriage is fundamentally about
children’s needs, not adult desires.

Our society owes children the opportunity, whenever possible, to know and develop
a meaningful bond with their own mother and father. Marriage between a man and
a woman is the best way to provide this opportunity.

California law now creates intentionally motherless or fatherless families where

children will not experience the unique contributions of at least one of their parents.

Decades of social science research has effectively demonstrated that the best
arrangement for children’s well being is to be raised by their own mother and father
who are married to each other. Even married couples that do not have children
promote society’s concern for children by providing an example to those that do
and, by observing their marriage vows, preventing the creation of other motherless
or fatherless homes.

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Proposition 8 is not about taking people’s rights away. It is a simple way to protect
marriage. It is also the last chance California voters may have to get their say on
this matter.

William Duncan is the director of the Marriage Law Foundation. The views
expressed in this article do not necessarily reflect the official position of the Protect
Marriage campaign in California or of The Church of Jesus Christ of Latter-day
Saints.