Thursday, June 11, 2009

Will a ballot to repeal Prop. 8 have a (substantive) religious-liberty exemption?

06/11/09 The Bay Area Reporter:

The California Marriage Equality Act has the following religious-liberty exemption:

This measure is not intended to, and shall not be interpreted to, mandate clergy or religious institution to perform a service or duty that goes against their faith.

Given what she says in her 05/02/09 LA Times opinion article, law professor Robin Wilson would consider this language to be the equivalent of paying "lip-service to religious freedom while enacting meaningless protections," as the First Amendment already protects clergy in the way the intiative would provide.

Yes on Equality filed the proposed initiative on April 30th. Yes on Equality activist Chaz Lowe says that it serves as a "placeholder," and that it was drafted with the help of unnamed attorneys. "I'd be very surprised if what we filed wound up being what is used," Lowe said.

Responding to an issue that the Prop. 8 campaign raised, Yes on Equality also includes a provision disclaiming any intention to change school curricula. The balance of the Reporter article concerns disagreement among marriage-equality supporters over how to address the school curriculum issue.

But do initiative proponents understand or even anticipate concern over the alleged inadequacy of language like that of the initiative's religious-liberty exemption? Are they taking into account stronger religious-liberty exemptions that allowed for successful passage of New Hampshire's same-sex marriage law? Apparently not. Equality California Executive Director Geoff Kors told the Reporter last week that Equality California

used similar language when it sponsored then-Assemblyman Mark Leno's Religious Freedom and Civil Marriage Protection Act bills in 2005 and 2007. (Both were vetoed by Governor Arnold Schwarzenegger.) "Clearly no clergy shall have to perform services against their will and repealing Prop 8 doesn't require anything to be taught in schools."

If Lowe is right that the draft language will change, perhaps the change will accommodate a less politically self-defeating exemption for religious liberty. On the politics of religious-liberty protection and same-sex marriage, consider this comment by Douglas Laycock, a scholar on religious liberty and the law, and a supporter of same-sex marriage:

[E]ach side has tended to make the Puritan mistake, seeking liberty for themselves and regulation for their opponents. The conservative religious community has been the most obvious about this, criminalizing same-sex relationships when they had the political strength to do so, and now resisting same-sex marriage where they still have the political strength to do that. The gay rights side has responded not only by opposing conservative religious movements politically, but often by opposing their claims to religious liberty as well.

1 comment:

RobTish said...

I believe you the group is called "Yes On Equality" rather than "Yes on 8," as you wrote in your post. "Yes on 8" would be a name for a group that wanted to KEEP the ban on same-sex marriage.

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