Another Prop 8 debate: Should religious views factor into voting?

By Daniel Burke
Saturday, August 14, 2010; B02

When U.S. District Judge Vaughn Walker struck down California's Proposition 8 earlier this month, he said voters' motivation for outlawing same-sex 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.

Although 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 a leading Southern Baptist seminary in Kentucky, 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.

Prop 8 supporters have filed an appeal of Walker's decision. Jim Campbell, a lawyer for the Alliance Defense Fund, a conservative 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 -- potentially ending at the Supreme Court.

"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.

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 consideration.

"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 M. 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.

Los Angeles Cardinal Roger Mahony released a statement 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. Period." 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."

Sister Mary Ann Walsh, a spokeswoman for the U.S. Conference of Catholic Bishops, said 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."

-- Religion News Service

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