- The Washington Times - Wednesday, August 11, 2010

U.S. District Judge Vaughn R. Walker’s Aug. 4 ruling striking down California’s Proposition 8 asserted far more than was necessary to redefine marriage as being between any two persons. Judge Walker’s decision included controversial “findings of fact” that amounted to a massive new salvo in the culture wars over sexuality.

Drawing up his judicial robes, Judge Walker rejected “stereotypes and misinformation” that “have resulted in social and legal disadvantages for gays and lesbians.” He denied that there is “any rational basis” for distinguishing the marriage of man and woman from same-sex relationships. For example, Judge Walker found no reason why the state should prefer that a child grow up with his or her mother and father. “The genetic relationship between a parent and a child is not related to a child’s adjustment outcomes,” he declared as “fact.”

Having dismissed the stated motives of Proposition 8 supporters, the judge claimed to have “uncloak[ed]” their true motives: “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.”

Judge Walker simply could have ruled that the equal protection clause of the U.S. Constitution mandates that marriage be completely desexed. He could have said simply that Proposition 8 proponents misread the evidence about differences between male-female marriages and same-sex relationships. But Judge Walker went further and condemned their religious views. He stated as “fact” that “religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”

Judge Walker quoted an anti-Prop 8 witness in identifying religion as “the chief obstacle for gay and lesbian political progress.” As examples of this negative influence, he cited official teachings of the Roman Catholic Church, the Southern Baptist Convention, the Orthodox Church in America, the Lutheran Church-Missouri Synod and other conservative Christian denominations.

The judge looked askance at the fact that “84 percent of people who attend church voted in favor of Proposition 8.” He cast suspicion on the campaign for Proposition 8 because it prominently “include[ed] the Church of Jesus Christ of Latter Day Saints (the ‘LDS Church’), the California Catholic Conference and a large number of evangelical churches.”

In a government that professes religious neutrality, these kinds of judicial attacks on named religious groups are extraordinary. One must ask: What business does a federal judge have declaring as a “finding of fact” that religious beliefs are harmful or beneficial to any group? Who is he to look into the hearts of religious believers and see only “stereotypes and misinformation”? Since when is a law held in suspicion simply because religious bodies endorsed it and churchgoers voted for it?

Roman Catholics, Southern Baptists, and others targeted by Judge Walker would give a different account of their motives. They affirm the unique status of the marriage of man and woman because they regard it as a blessing, not a harm, for all of society. They counsel people against all nonmarital sexual relations, heterosexual or homosexual, because marriage provides the best environment for both adults and children to flourish.

The judge offered reassurances that overturning Proposition 8 would not “affect the First Amendment rights of those opposed to marriage for same-sex couples.” He stressed a prior ruling that “no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.” But this has never been the principal threat.

The real threat impinges more upon traditionalist laypeople and parachurch organizations. When state policy dictates that there are no differences between marriage and same-sex relationships, then such individuals and organizations become enemies of state policy, and state power is brought to bear to make their consciences bend. We already have seen this dynamic at work in Massachusetts and the District of Columbia, where Catholic Charities has been driven out of the adoption business because it prefers to place children with man-woman married couples. It will affect many other areas, including hiring practices, employment benefits, education and counseling related to marriage, and marriage-related facilities and services.

Judge Walker’s decision, if upheld, will federalize this dangerous dynamic. It will escalate the culture wars by officially labeling traditional religious believers and bodies as enemies of the core constitutional value of “equal protection.” It is to be hoped that higher courts will find a way to avoid that divisive outcome.

Alan F.H. Wisdom is vice president of the Institute on Religion & Democracy.

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