Few would disagree that the debate over same-sex marriage is more charged than usual. Charges of bad faith and bigotry abound. Honest reporting can help cooler heads prevail. Many of the arguments in this debate have been badly mangled, and that’s why I was so pleased to see this Religion News Service piece by Daniel Burke on “Why Prop 8 ruling scares religious conservatives.”
Burke does an excellent job explaining the reaction of proponents of traditional marriage to Walker’s decision and the legal objections being put forth. Here’s how Burke explains the objections to Walker’s attempts to de-legitimize religion as a valid basis for making law:
“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.”
Prop 8 backers appealed Walker’s decision. Jim Campbell, an attorney with 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 — including, potentially, the U.S. Supreme Court.
“At bottom,” Campbell said, “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.”
Abolitionists, anti-abortion activists, and civil-rights activists all have been motivated by personal faith, Campbell argued. “To be blunt, we felt [Walker's decision] was an all-out attack on religion.”
It’s a broad argument that encompasses a lot, and we get both extensive quotes from some of the players and even some historical context. Refreshing! Of course, there’s also some more neutral and/or critical perspective on these objections. That’s very helpful for putting the legal validity of anti-gay marriage arguments in perspective:
Howard Friedman, an emeritus law professor at Ohio’s University of Toledo, said the judge 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.”
I did, however, strenuously object to one part of the article. The juxtaposition of these two paragraphs was not handled well:
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 Catholic 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.”
Emphasis mine. I don’t think anything Cardinal Mahony is saying here can fairly be construed as “prov[ing] Walker’s point” that religion is a “prime source of anti-gay animus.” Further, I think the debate is a bit more nuanced. What constitutes “anti-gay animus”? Believing that marriage should remain a heterosexual institution doesn’t necessarily mean you harbor any ill will toward gay people, though I’m sure the pro-gay marriage forces would love to argue that any opposition to same-sex marriage is the tip of the bigotry spear.
But the piece was otherwise well-handled, so I’m going to give Burke the benefit of the doubt. It’s very possible the phrasing and juxtaposition here was unintentionally haphazard. I really hope we see more pieces that make good faith efforts to present all arguments in this debate in the best possible light. I think it does clarify the discussion a bit, and generally help make the debate more honest.