Efforts to overturn California's anti SSM Prop. 8:
Perry v. Schwarzenegger
The Ethics and Religious Liberty
Commission's Amicus Curiae submission
||"Perry v. Scharzenegger" is a lawsuit brought by two same-sex couples
seeking to have Proposition 8 declared unconstitutional and thus to gain access
to marriage in California.
||In this website, "SSM" is used as an acronym for
||"LGBT" is a commonly used acronym for Lesbian, Gay,
Bisexual & Transsexual.
||"Amicus Curiae" means "Friend of the Court." It is
a document by a person or group not directly involved in a case that is submitted
for guidance to the court. It may support the cause of the
defendants, or plaintiffs, or both, or neither.
The Ethics and Religious Liberty Commission (ERLC):
The ERLC is is a group within the Southern Baptist Convention (SBC) -- a fundamentalist
Christian denomination and America's second largest Christian faith group
(after the Roman Catholic church). Both the ERLC and SBC have long been opposed to equal rights for LGBTs.
They submitted an Amicus Curiae to the court in support of Prop. 8 and in opposition to
same-sex marriage (SSM) and marriage equality. 1 Their document stresses that the SBC is
one of the "mainstream religious faiths."
Their initial points:
||If marriage equality is attained, it would "undermine the
critical contributions marriage has always made to society."
||They are concerned with the plaintiffs' argument that religious
groups' attempts to deny
access to SSM "stems necessarily from animus" towards sexual
They provide three arguments. Our comments are shown [colored
and in brackets]:
"Religious communities have long supported marriage as a sacred
institution that protects important policy interests:
||"..marriage between a man and a woman is sacred."[This may imply that
they consider marriage by a same-sex couple is not sacred. However they do not
state this explicitly.]
||God designed opposite-sex marriage as a sacred institution.
[It is not clear whether they wish to imply that God also rejects
SSM or that the Bible simply does not include it
as an option along with the other
family and marriage types mentioned in the
Hebrew Scriptures (Old Testament).
We suspect the former.]
||The SBC "Baptist Faith and Message" affirms: "Marriage is the uniting of one man and one woman
in covenant commitment for a lifetime. It is God's unique gift to reveal the union between Christ and His church and to provide for
the man and the woman in marriage the framework for intimate companionship, the channel of sexual expression according to Biblical standards,
and the means for procreation of the human race." [This
definition definitely excludes same-sex couples. If marriage symbolizes the
union between Christ and church members -- who are both male and female --
then it would seem that both opposite-sex and same-sex marriages would be
||The birth of children can only "naturally" result as a
result of sexual intercourse between a man and a woman. [A
fertile opposite-sex couple can obviously conceive a child by
themselves; a lesbian couple would need an assisted reproduction procedure. An opposite-sex couple in which one or both spouses
are infertile would also need an assisted reproduction technique in
order to conceive. Presumably, the ERLC considers these methods as
"unnatural;" otherwise they would not have brought up the
matter. The ERLC
seems to be denigrating the relationships of infertile couples --
both opposite-sex and lesbian -- who need to resort to assisted
reproduction techniques in order to conceive. This position has repercussions
far beyond gays, lesbians and bisexuals. It seems to also denigrate adoption as
||Adults in an opposite marriage can provide both male and
female role models for children. [This seems to reject the
efforts by most same-sex couples to link their children with
mentors and "big brothers/sisters" in order to involve their
children with both male and female role models].
||They quote the "Manhattan Declaration: A call of
Christian Conscience" which states that current status of opposite-sex marriage
in America is in crisis:
The out-of-wedlock birth rate has increased by over 8 times in
less than 5 decades and is now over 40%. Non-marital sexual cohabitation is
increasing and has become the norm for young couples in many areas of the
country. The rate of divorce is
remaining extremely high at almost 50%. [One obvious and very
effective method of reducing the rate of out-of-wedlock births
and the rate of non-marital sexual cohabitation would be to
allow same-sex couples to marry. It would also benefit both the parents and
children through extra protection. However, the
ERLC would find this unacceptable.
The divorce rate is high because most people want to terminate a marriage if
it becomes toxic. Even young adults who are religiously conservative seem to
want to be able to easily terminate a marriage.
Covenant marriages -- which
are more difficult to get out of -- have failed to attract
many engaged couples in the very few states where they are available.]
||Adopting marriage equality for all loving committed couples
would disconnect the link between marriage and procreation and
imply that marriage is about nothing but satisfying adult
desires. It would send a message that men and women are
interchangeable as parents and that children do not need a
mother and father to thrive. [Apparently, opposite-sex married
couples are already disconnecting marriage and procreation in large
numbers; some are choosing to get pregnant outside of marriage;
others are living together or marrying while using contraception to prevent
pregnancy. However, all of this has
nothing to do with SSM. Many commentators believe that by allowing same-sex
couples to marry who are anxious to do so would strengthen the institution
of marriage. Numerous recent studies have shown
that thriving children's main need is for love and security.
equally well in families led by same-sex or opposite-sex parents
when these two factors are present].
Religious support for opposite-sex marriage and opposition to non-marital
sexuality and same-sex marriage is motivated by love:
The ERLC further states that:
These statements provide an excellent justification for the SBC to follow their
beliefs and refuse to marry same-sex couples in those states and countries that
have marital equality. However, more liberal and progressive Christian groups,
and their memberships, interpret the Bible very differently. Many Americans hold
different opinions concerning the
message of the Bible on
same-sex sexual relationships, and the morality of engaging in sexual
behavior inside a loving, committed same-sex relationship but outside of
marriage. A comfortable majority of American adults
favor making civil unions or domestic partnerships available for same-sex
couples with all of the rights, privileges and obligations of opposite-sex
||They believe that sexual contact is against the will of God
unless it is by an opposite-sex married couple.
||"Engaging in sexual conduct outside the bond of marriage demeans the dignity of the individual, ignores God's
full plan for marriage, and interferes with a person's relationship with God."
||They pray that persons of all sexual orientations will
"come to know and love Jesus Christ." [This may be a
reference to the beliefs of many fundamentalist and other evangelical
Christians. They interpret 1 Corinthians 6:11 as implying that when a lesbian or
gay person is saved by repenting of their sins and
trusting Jesus as Lord and Savior, their same-sex attractions will fade and they
will eventually develop a heterosexual orientation. This does not seem to happen in practice.
Even years of full-fledged reparative therapy
sessions have an miniscule success rate at
converting patients' sexual orientation to heterosexual. However, many bisexual
evangelicals do choose to restrict their relationships to members of the
opposite gender, and many gay and lesbian evangelicals do choose to remain
celibate even as their sexual orientation remains unchanged.
American's attitudes towards sexual activity outside of marriage is also
radically different from the standard proposed by the SBC. Numerous surveys of
American and Canadian youth indicate that the median age at which they become
sexually active is 16, and is gradually becoming even earlier. This is about a decade before their average age at their first
marriage. According to a study at Columbia University among 12,000 American
adolescents, 88% of those who took a vow to remain a virgin until marriage and
99% of those who took no such pledge ended up having sex before marriage.
We have never seen a study of the relationship between pre or
post marital sex and a person's dignity and relationship with God. Thus, we
cannot comment meaningfully on their second point.]
To characterize religious support for marriage as
unconstitutional animus threatens the ability of religious people to
participate in public debate:
The ERLC further states that:
||Christians strongly oppose any enlargement of the definition of marriage
to include all loving, committed couples. [This is inaccurate.
Christians actively promote the availability of SSM.]
||Religious people can and should seek to influence public policy in the
way they believe will be most beneficial. ..." [This is true. However,
Christians are not uniform in their beliefs. They reach very different -- often opposite -- conclusions about every
moral question from abortion access to
physician assisted suicide. That is because most Christians analyze moral question
using four criteria: The teachings of the Bible as they interpret them to
be; church tradition; personal experience, and scientific or other
knowledge. Conservatives tend to emphasize the first two; progressives often
emphasize the last two. Further, conservatives tend to look for specific
biblical verses or passages that might indicate God's will. Progressives tend to look
at biblical themes like justice, treating people as equals, etc. And so,
they often come to different and opposing conclusion.]
||Clergy and other religious persons were very active in the civil rights
movement. [This is very true, as one would expect from such an important
human rights matter as the end of racial segregation. However, this is not
the only civil rights movement that has existed in America. The abolition or preservation of
human slavery, granting or denying women the vote, preserving or ending
segregation and the battle for or against marriage equality were or are major
civil rights conflicts. All of these battles have seen clergy and religious persons actively
involved. But there has generally been a split with some Christians fighting for
increased rights and others wanting to maintain the status quo. The SBC which the ERLC is a part, owes its
founding to a desire to preserve slavery -- a belief for which the denomination
apologized to African Americans in 1995. Southern Baptist clergy were noticeably underrepresented in the
anti-segregation marches and sit-ins, They are now taking a very active role to oppose
The religious freedom of Christians to actively participate in public
life is threatened "when that faith is treated as bigotry." [Bigotry takes
many forms: racism is bigotry toward people on the basis of their race;
sexism is bigotry based on gender. But homophobia is in a special category.
That is because:
||Many youth, religious liberals, human sexuality researchers,
therapists, GLBT persons, etc. take a progressive view towards human sexuality: They
consider homosexuality, heterosexuality, and bisexuality to be sexual
orientations defined in terms of the gender(s) to whom a person is
sexually attracted; all three are seen as generally unchangeable, unchosen, normal, natural and
having the potential of being moral or immoral.
||Many elderly persons, religious conservatives, etc. consider
heterosexuality to be normal, natural and morally neutral, but define
homosexuality in terms of behavior and view it as changeable, chosen, abnormal, unnatural, immoral, and
hated by God.
||Many progressives consider the conservative position to be bigotry,
in the same general class as sexism and racism.
||Many conservatives consider the progressive position to be a threat
to marriage and to the culture generally. They view it as mistaken, ill advised,
contrary to the Bible, and against the will of God. Tradition, reason
and faith call upon them to preserve marriage as restricted only to a union of one man and
||"... To portray religious support for marriage (and, by
extension, support for California's Proposition 8) as rooted in
anti-homosexual animus is grossly inaccurate and deeply offensive. [That is
certainly true from the conservative point of view. Most interpret the
Bible as stating that sexually active homosexuals will spend eternity in
Hell, that God hates homosexual behavior, and that gays and lesbians can
become ex-gays with a little effort. Thus, they regard their political
activity to preserve marriage inequality as motivated out of love for
persons trapped in the "homosexual lifestyle." Many feel that
the more difficult the "homosexual lifestyle" is, the less likely people
will choose homosexuality. However religious progressives interpret the
Bible and human sexuality knowledge very differently. For some of them,
denying equal protections and rights for sexual minorities and
prohibiting SSM is an indication of bigotry similar to sexism, racism,
[Their third point criticizes the characterization of "...religious
support for marriage as unconstitutional animus ..." The word
"animus" has multiple meanings as a Google search for define: animus reveals. But the definition found in
WordNet seems to
apply here: "a feeling of ill will arousing active hostility."
The the word
"unconstitutional" seems strangely out of place. A feeling is just a feeling; it cannot be
judged to be unconstitutional. Hostility is basically anger bordering on
hatred; but neither anger nor hatred can be defined as an unconstitutional
Religious hate speech is protected by the First Amendment of the U.S. Constitution. If
it were not, there would be many religious folks who would have been charged with
hate speech directed at other denominations in the same religion, followers of other religions,
followers of no religions, Agnostics, Atheists, freethinkers, humanists,
etc. At least two fundamentalist pastors have advocated genocide against
persons from a minority religion, but were never charged with any crime, because
they couldn't be. Hate speech is
simply not a crime in the U.S. When legislation
against violent hate crimes was being debated in Congress during mid-2009,
even though religious hate speech is firmly protected by the U.S.
Constitution, an amendment to the bill was passed that reinforces the First
Amendment by specifically excluding religious hate
speech from prosecution.
So we are at a loss to understand how religious support for traditional
marriage -- which implies religiously motivated opposition to SSM -- can be
unconstitutional. It is protected speech. The UK, and Canada, some
other countries that follow the British Parliamentary traditions and some other countries
do criminalize some forms of hate speech. But this comment by the ERLC
appears to refer to the American situation.
We will attempt to contact the ERLC to obtain an explanation.
In the meantime, Christians and any other persons who want to remove basic human
rights from persons because of their sexual orientation can expect that
progressives will accuse them of homophobia and animus. Sixty years ago before
Dr. Evelyn Hooker conducted the first meaningful study into the mental health of
gays and lesbians, the current conservative position on sexual orientation was
almost universal throughout North America. But since then,
various groups have identified homosexuality and bisexuality as simply two
minority sexual orientations experienced by people who deserve protection
and equal rights. Conservatives can probably expect increasing accusations
of animus in the future, if current trends
So, is there a great deal of animus among religious conservatives against SSM
and GLBT individuals? It would appear that many if not most religious
conservatives feel that their activities against SSM and marriage equality are
motivated by a love of God and country. But it seems obvious that religious
progressives and GLBT individuals sense what they feel is serious level of
hatred from conservatives.
Perhaps the only way to answer this question is to look at actions instead of
We certainly do receive many hate Emails on the topic from people who are
obviously conservative Christians because of the content of their text. I do not
recall having received a hate Email from a progressive Christian on this topic.
But that is just flimsy anecdotal evidence.
A study could be designed to detect the presence or absence of hateful actions
motivated by religion:
Researchers could attempt to identify the religious affiliation of convicted gay
bashers and determine if various wings of Christianity were overrepresented or
underrepresented. One could attempt to identify the religious affiliations of
parents who immediately toss their children out on the street when they come out
of the closet. The results would either squash or confirm the presence of animus
among religious conservatives. We have not run across any such studies, but they
may exist. And the results would be fascinating]
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
David L. Llwewllyn, Jr., "Memorandum of Law, Brief Amicus Curiae, of the Ethics and Religious Liberty Commission SBC,"
http://erlc.com/ This is a PDF file.
"Portrait of India From England - With Love," Portrait of India, at:
Copyright © 2010 by Ontario Consultants on Religious
Original posting: 2010-JAN-13
Latest update: 2010-JAN-13
Author: B.A. Robinson