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Hollingsworth v. Perry (formerly Perry v. Schwarzenegger):
California lawsuit challenging constitutionality of Prop. 8

2013-FEB: Amici Curiae brief filed by Anti-Defamation
League (ADL) and 19 other religious groups

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Continued from a previous essay

In this web site, "SSM" is an acronym for "same-sex marriage."

2013-MAR-01: An Amici Curiae filed by the Anti-Defamation League (ADL) and 19 other religious groups:

A group of Christian, Hindu, Jewish, and other religious groups filed a brief opposing the constitutionality of Proposition 8. The following groups participated:

• Anti-Defamation League (ADL).
• Americans United for Separation of Church,
• Bend the Arc—A Jewish Partnership for Justice,
• The Central Conference of American Rabbis and Women of Reform Judaism,
• Congregation Beit Simchat Torah,
• Hadassah—The Women’s Zionist Organization of America, Inc.,
• The Hindu American Foundation,
• The Interfaith Alliance Foundation,
• The Japanese American Citizens League,
• Jewish Social Policy Action Network,
• Keshet,
• Lutherans Concerned/North America,
• Metropolitan Community Church,
• The National Council of Jewish Women,
• Nehirim,
• People for the American Way Foundation,
• The Religious Coalition for Reproductive Choice,
• T’ruah,
• Rabbis for Human Rights-North America, and
• Women’s League for Conservative Judaism.

Theirs is a formidable brief that is well worth reading in full. It concentrates on how religious beliefs and religiously-derived systems of morality cannot legitimately be used to deprive sexual minorities of equal rights.

Some of the points raised in the brief are:

• "ADL has a substantial interest in this case. At issue are core questions about equality and constitutional rights."
  
  
• "... the religious and moral justifications offered by Petitioners’ amici to support Proposition 8 -- if embraced by this Court -- would threaten to
  invite state-sanctioned prejudice..."
  
  
• Many briefs submitted by supporters of Proposition 8:

  "... argue that Proposition 8 has a rational basis because the Judeo- Christian religious tradition has historically recognized marriage as a union between opposite-sex partners and has frowned upon same-sex relationships and sexual intimacy."

• "Others attempt to recast religious opposition to marriage equality as concern for religious freedom, arguing that Proposition 8 is a rational bid to avoid 'reasonably foreseeable' conflicts between same-sex marriage and religious liberty."

"Those arguments should be rejected. This Court has refused for three-quarters of a century to uphold laws disfavoring minority groups based on religious or moral disapproval alone -- with the one, now-discredited exception of Bowers v. Hardwick. ... And for good reason: Time and
again throughout our nation’s history, laws that disadvantaged or degraded particular groups have been justified by resort to morality and religion. And time and again, our society has come to see those laws as repugnant, and the religious and moral disapproval justifying them as little more than a means to enshrine the status quo. Not surprisingly, the religious and moral disapproval itself has receded as society shifts and the minority group gains greater public acceptance. That history helps explain why this Court rejected moral disapproval in Lawrence v. Texas, explaining that traditional morality is 'not a sufficient reason to uphold a law'."

"The Court should hew to this practice and reject religious or moral disapproval as a legitimate basis for a law that strips Californians of their state right to a civil marriage. Like the moral and religious justifications for slavery, segregation, interracial-marriage bans, and laws restricting women’s roles in public life, the moral and religious objections to marriage equality are proving ephemeral. Indeed, even religious groups among Petitioners’ amici have tempered their views in just the past few years. These swiftly shifting sands underscore why moral and religious disapproval -- including the chimera of protecting the 'religious liberty' of those who condemn marriage equality -- are too weak a foundation
for government discrimination."

Webmaster's notes:

Bowers v. Hardwick was a Supreme Court ruling of a Georgia state law that criminalized oral and anal sex in private between consenting adults of either the same or opposite genders. It was upheld as constitutional by the U.S. Supreme Court in 1986, and overturend in 2003 by their Lawrence v. Texas decision. In the latter ruling, the Supreme Court stated that "Bowers was not correct when it was decided, and it is not correct today."

The references to "religious liberty" on the part of the supporters of Prop. 8 apparently refer to the new, emerging definition for religious freedom and liberty. Religious freedom/liberty used to mean freedom of religious belief, freedom of association, freedom to proselytize without oppression, etc. The emerging definition includes the religiously based freedom to denigrate, oppress, and discriminate against minorities -- often sexual minorities. Examples include the right claimed by wedding photographers, persons renting meeting halls, wedding cake bakers, etc. to offer their services to the general public, while refusing services to couples of the same sex.

The ADL brief continues:

• Another concern for supporters of Prop. 8 was expressed by the Christian Legal Society who wrote in their brief:

  "If this Court declares that religious judgments about marriage, family, and sexual behavior are the legal equivalent of racism, it will diminish the religious liberty of millions of religious believers and religious communities.”

• Supporters of Prop. 8 only have one valid argument to support their position:

  "... religious and moral disapproval of marriage equality and, in some cases, of gay people themselves."

• "Proponents of laws that marginalize disadvantaged groups have long relied on arguments grounded in morality and religion to justify the discrimination. Time and again, however, society has come to see these laws as a stain on the nation’s history and to view the religious and moral justifications offered for them as wrong, both spiritually and philosophically."
  
  
• The ADL brief cites historical grounds for religious and moral disapproval, including:
  • Human slavery,
  • Racial segregation,
  • Interracial marriage as immoral and a contravention of God's word,
  • Restricting the roles of women
    
    
• "Religious justifications for discriminatory laws vanish as popular support for those forms of discrimination fade. Or, as Professor Eskridge put it, “[r]eligious doctrine on matters relating to race and sexuality has been relentlessly dynamic: the [current interpretation of the] Word of God has changed constantly."
  
  
• "The unstable half-life of religious and moral justifications for discriminatory past practices is one reason this Court no longer relies on religious and
  moral disapproval alone to uphold laws, particularly laws burdening minority groups. ... As one scholar has systematically demonstrated,

  '... the post-World War II Court has never relied exclusively on morality to sustain government action with the exception of the now-discredited Bowers v. Hardwick'."

• "... when it comes to LGBT (Lesbian, Gay, Bisexual and Transgender) rights and marriage equality, history is repeating itself: Religious and moral objections to marriage equality are dissipating quickly as societal attitudes fundamentally recalibrate. ... During the last three decades, most main-
  stream Protestant denominations, including the Unitarian Universalist Association, the Presbyterian Church, the Quakers, the Episcopal Church, the
  United Methodist Church, the Evangelical Lutheran Church in America, the United Church of Christ, and the Disciples of Christ, have announced that LGBT people are entitled to equal treatment and issued statements beseeching their members not to reject LGBT congregants. ..."

"During this same period, Unitarians, the United Church of Christ, and Reform, Reconstructionist and Conservative Jews began ordaining openly gay rabbis and ministers. ... The Episcopal Church followed suit in 1989."

"To be sure, for the Catholic Church, Mormons, Southern Baptists, and some other groups, marriage equality has become 'the new Maginot Line for homosexuality.' ... However, in general, moral and religious condemnations of same-sex marriage have waned in recent years. A number of
groups, including the Union of American Hebrew Congregations (Reform Jews), the Unitarian Universalist Church, the United Church of Christ, the Quakers, and the Episcopal Church, now embrace marriage equality."

• "Change has not come overnight, but neither did it come overnight with slavery, segregation, interracial marriage, or women’s rights. The
  bottom line is that 'the tension between equal rights for gay people and liberty for religious people has been obliterated for a good many denominations and reduced for others, [and] the evolution continues'."
  
  
• "As Justice Scalia aptly observed in Lawrence [v.Texas]:

  'If moral disapprobation of homosexual conduct is no legitimate state interest for purposes of proscribing that conduct ... what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising the liberty protected by the Constitution?'
  
  The answer: There is none."

• "No matter how framed, the religious-freedom argument can gain no traction in a case, like this one, involving a challenge to a discriminatory law; this
  Court is not in the habit of upholding discriminatory laws to protect religious prerogatives. Amici would do better to recognize that religious liberty is best safeguarded when religious groups retain the freedom to define religious marriage for themselves, remembering that civil marriage is an institution of government, which is prohibited from establishing laws reflecting particular religious viewpoints."

Points of interest added by the religious groups other than the ADL:

Most of the religious groups that joined with the ADL in sponsoring the Amici Curiae added their own points of interest. Excerpts from three group's comments are listed below:

• Americans United wrote, in part:

  "Consistent with its support for the separation of church and state, however, Americans United opposes measures that exceed the bounds of
  permissible accommodation by imposing substantial harms on innocent third parties. That concern is especially salient when the purported accommodation results in government-sanctioned discrimination against a class of people that historically has been the target of religious and moral disapproval."

• The Metropolitan Community Church is a gay-positive Christian denomination founded in 1968. They write:

  "MCC has been at the vanguard of civil and human rights movements and addresses the important issues of racism, sexism, homophobia, ageism, and other forms of oppression. MCC is a movement that faithfully proclaims God’s inclusive love for all people and proudly bears witness to the holy integration of spirituality and sexuality."

• T'ruah: Rabbis for Human Rights-North America expressed concern on Proposition 8's limitations on the religious liberty of their rabbis. They write:

  "The insistence that human beings are created in the image of God also spawns a commandment to procreate -- that is, to partner with God in creating new divine images. In fact, this is the first commandment that the Torah gives to human beings. Today, many same sex couples are having and raising children. Denying these couples the rights of marriage challenges their ability to fulfill this divine commandment."
  
  "The Universal Declaration of Human Rights similarly guarantees that, 'Men and women of full age ... are entitled to equal rights as to marriage, during marriage and at its dissolution'."

  T’ruah represents 1800 rabbis and cantors, and tens of thousands of American Jews. Three of the four major denominations of Judaism -- the Reform, Conservative, and Reconstructionist Movement -- all permit religious ceremonies for same-sex marriages. Since the State authorizes our rabbis and cantors to conduct civil marriages, the refusal to recognize some of the marriages we conduct constitutes a restriction on our own role as clergy."

This topic continues in the next essay with speculation on how the U.S. Supreme Court will rule

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. Brief of Amici Curiae Anti-Defamation League et al. in support of Respondents," Anti-Defamation League & 18 other religious groups, 2012-MAR-01, at: https://www.au.org/

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Copyright © 2013 by Ontario Consultants on Religious Tolerance
Original posting: 2013-MAR-08
Latest update: 2013-MAR-08
Author: B.A. Robinson

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