National Catholic Register


Laws Change With Marriage

Litigation Against Religious Freedoms Follows Same-Sex ‘Marriage’



November 2-8, 2008 Issue | Posted 10/28/08 at 11:18 AM


SACRAMENTO, Calif. — Marriage activists say more is at stake on ballots this Nov. 4 than most people think.

Decisions about marriage don’t just affect same-sex couples who want to “wed.” They pose legal threats to anyone who objects to same-sex “marriage.”

Case in point: On Oct. 10, 18 first graders traveled to San Francisco City Hall for the wedding of their teacher and her lesbian partner. The school’s principal told the San Francisco Chronicle that the school-sponsored field trip was “a teachable moment” that was perfectly appropriate for first graders.

“Here, the rights of parents are overridden by special rights,” observed Brian Rooney, attorney and spokesman for the Thomas More Law Center in Ann Arbor, Mich.

California’s Supreme Court imposed same-sex “marriage” on the state May 15. The Connecticut Supreme Court weighed in on Oct. 10 when it ruled that same-sex couples cannot be denied the freedom to marry under that state’s constitution. But Rooney said other states won’t be spared the same repercussions California, Connecticut and Massachusetts face.

In July, New York’s Governor David Paterson issued an executive order for state agencies there to recognize same-sex “marriages” validly celebrated elsewhere. The order was upheld against challenge in trial court.

State supreme courts have been overturning legitimately passed state propositions and statutes defining marriage as between one man and one woman. Grassroots organizations in Arizona, Florida and California have traditional marriage constitutional protection propositions on this month’s ballots. Connecticut has a constitutional convention question on the ballot that some are making a referendum on same-sex “marriage.”

Catholic Charities in Massachusetts had to stop adoption services because it would be forced to place children with homosexual couples. Parents who objected to curriculum being taught to their kindergarten-age children were told by Massachusetts courts that a school could expose children to ideas about homosexuality without violating their parents’ rights to exercise religious beliefs. The U.S. Supreme Court refused to hear the appeal.

Last April, the New Mexico Human Rights Commission fined a private photographer who refused to photograph a lesbian couple’s same-sex commitment ceremony.

In Iowa last year, the Des Moines Human Rights Commission found the local YMCA in violation of public accommodation laws because it refused to extend “family membership” privileges to a lesbian couple.

The New York Supreme Court decided that the Orthodox Jewish Yeshiva University Albert Einstein College of Medicine must allow same-sex couples in its married dormitory.

In addition to those cited above, similar court cases with the same results have been adjudicated in California, Colorado, Illinois, Kentucky, Maine, Maryland, Michigan, Mississippi, Missouri, New Jersey, Oklahoma, Pennsylvania, Vermont, Virginia and Washington, D.C.

Arizona is one of the states where marriage defenders want to stem the tide.

Arizona’s Proposition 102 would amend the state’s constitution with “Only a union of one man and one woman shall be valid and recognized as a marriage in this state.”

“Arizonans have seen what happened in both Connecticut and California this year alone, where state supreme courts have ruled marriage statutes as unconstitutional,” said Ron Johnson, executive director of the Arizona Catholic Conference. “Without the protections of a constitutional amendment, many of the problems happening in other states will spread.”

How these issues are decided will have widespread repercussions on day-to-day life, says William May, chairman of Catholics for the Common Good.

He said same-sex “marriage” is a “protected class” in California now that the state’s Supreme Court overturned a voter-approved proposition that marriage was to be defined as between one man and one woman.

“This provides a basis for lawsuits against people who refuse to cooperate and accept that there is a difference between same-sex ‘marriage’ and traditional marriage,” he said.

Fellow Californian Patricia Cain, a professor at Santa Clara University School of Law, begged to differ.

“The proponents of Proposition 8 have unleashed an ad in which a law professor proclaims that unless marriage rights are denied to same-sex couples, churches risk losing their tax exemptions,” Cain wrote in an op-ed on “The claim is pure nonsense … The U.S. Constitution guarantees separation of church and state. It also guarantees that an individual’s right of religious liberty is protected in every state in this country.”

Cain pointed out that the California Supreme Court, in its decision, gave this explanation: “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.”

But Thomas More’s Brian Rooney said that the 1989 U.S. Supreme Court case Smith v. Employment Division “found that as long as laws are written in a neutral manner with neutral effects, the right to religion is not affected. Based on this decision, cities, towns and states have overridden religious objections by writing so-called neutral laws.”

Smith ruled that religious believers may not be exempted from “neutral laws of general applicability.” The Supreme Court reasoned that requiring states to demonstrate a “compelling state interest” before enforcing a law against a religious believer is tantamount to providing religious persons a private right to ignore a generally applicable law, such as those forbidding discrimination in employment, public commerce and housing.”

Prior to 1989, the U.S. Supreme Court interpreted the Constitution’s free-exercise-of-religion guarantee to ban state actions substantially burdening a religious practice, unless justified by a “compelling state interest.”

“Our country was founded first and foremost on freedom of religion, and now we are facing special laws for special people over religiously-held beliefs,” said Rooney.

Florida and California

Florida’s constitutional amendment is Proposition 2. It states: “In as much as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid and recognized.”

In a statement on the Florida Catholic Conference website, nine bishops wrote, “The common good and the future of our society are served best through the natural order of a union of a man and a woman. Research and history support the traditional family as the best environment to nurture and raise healthy children who thrive both physically and emotionally.”

As Brian Rooney commented, “I am happy to see the U.S. Catholic bishops coming out strongly on this issue. When they come out weak or don’t say anything at all on issues important to the Catholic faith, we lose. But when they come out strong, as they have with the defense of traditional marriage, we gain strength and win.” Rooney continued, “Florida is important because it requires a 60% margin to pass.”

Proposition 8 in California seeks to add as a constitutional amendment: “Only a marriage between a man and a woman is valid and recognized in California.”

“Under the law in California now, it is considered discriminatory to express that there is a difference between same-sex ‘marriage’ and traditional marriage,” stated May of Catholics for the Common Good. He predicted that children will be taught this viewpoint in school. “When parents teach their values, children will see their parents as discriminating, as they were taught in school,” he said. “This creates a conflict that undermines the right of parents to teach their children their faith, what they know as truth.”

Robin Rohr is based

in Willits, California.