Religious Tolerance logo

Efforts to overturn California's anti SSM Prop. 8:

Perry v. Schwarzenegger

The Ethics and Religious Liberty
Amicus Curiae submission

horizontal rule

Sponsored link.

horizontal rule


bullet "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.

bullet In this website, "SSM" is used as an acronym for "same-sex marriage."
bullet "LGBT" is a commonly used acronym for Lesbian, Gay, Bisexual & Transsexual.
bullet "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.

horizontal rule

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:

bullet If marriage equality is attained, it would "undermine the critical contributions marriage has always made to society."

bullet They are concerned with the plaintiffs' argument that religious groups' attempts to deny access to SSM "stems necessarily from animus" towards sexual minorities.

They provide three arguments. Our comments are shown [colored and in brackets]:

  1. "Religious communities have long supported marriage as a sacred institution that protects important policy interests:

    The ERLC argues that:
    bullet "..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.]

    bullet 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 eight family and marriage types mentioned in the Hebrew Scriptures (Old Testament). We suspect the former.]

    bullet 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 needed.]

    bullet 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 well.]

    bullet 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].

    bullet 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.]

    bullet 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. They do equally well in families led by same-sex or opposite-sex parents when these two factors are present].

  2. 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:
    bullet They believe that sexual contact is against the will of God unless it is by an opposite-sex married couple.

    bullet "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."

    bullet 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.

    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 now favor making civil unions or domestic partnerships available for same-sex couples with all of the rights, privileges and obligations of opposite-sex marriage.

    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.]

  3. 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:
    bullet Christians strongly oppose any enlargement of the definition of marriage to include all loving, committed couples. [This is inaccurate. Many Christians actively promote the availability of SSM.]

    bullet 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.]

    bullet 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 marriage equality.]

    bullet 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:
    bullet 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.
    bullet 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.
    bullet Many progressives consider the conservative position to be bigotry, in the same general class as sexism and racism.

    bullet 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 one woman.]

    bullet "... 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, xenophobia, etc.]

    [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 feeling. 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 continue.

    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 feelings.

    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

horizontal 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. David L. Llwewllyn, Jr., "Memorandum of Law, Brief Amicus Curiae, of the Ethics and Religious Liberty Commission SBC," 2010-JAN-08, at: This is a PDF file.
  2. "Portrait of India From England - With Love," Portrait of India, at:

horizontal rule

Site navigation:

Home > "Hot" topics > Homosexuality > Couples > California > Attacking Prop. 8 > here

horizontal rule

Copyright 2010 by Ontario Consultants on Religious Tolerance
Original posting: 2010-JAN-13
Latest update: 2010-JAN-13
Author: B.A. Robinson

line.gif (538 bytes)
Sponsored link.

horizontal rule

Go to the previous page, or to the "Attacking Prop. 8" menu, or choose:


Go to home page  We would really appreciate your help

E-mail us about errors, etc.  Purchase a CD of this web site

FreeFind search, lists of new essays...  Having problems printing our essays?

Twitter link

Facebook icon

GooglePage Translator:

This page translator works on Firefox,
Opera, Chrome, and Safari browsers only

After translating, click on the "show
original" button at the top of this
page to restore page to English.