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TIM RUTTEN

Extra help for Prop. 8

The GOP ticket could add fire to the state fight over same-sex marriage.

September 06, 2008|TIM RUTTEN

The McCain-Palin ticket's decision to renew hostilities in the culture wars seems likely to increase the already considerable national profile of a hotly contested California proposition dealing with same-sex marriage.

Proposition 8 on November's general election ballot would amend the state Constitution to forbid marriage to gay and lesbian couples. Earlier this year, a landmark decision by the California Supreme Court, relying on precedents that overturned legal bans on interracial unions, held that marriage is a "fundamental right," guaranteed by the state Constitution.

"Our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation," Chief Justice Ronald M. George wrote for the court's majority.

This reasoning is anathema to religious and social traditionalists, who argue that civil society has an obligation to legally affirm and materially support monogamous marriage between men and women, as the historically tested foundation of a just and stable society.

So it wasn't much of a surprise that Proposition 8 quickly qualified for the ballot after the court's opinion came down. What is surprising is the extent to which support for the measure has become a national cause. So far, more than half the money raised to finance the yes-on-8 campaign has come from out of state. James Dobson's Colorado-based Focus on the Family already has given more than $400,000, while the American Family Assn. -- headquarters, Tupelo, Miss. -- has contributed $500,000. The national council of the Knights of Columbus, a Catholic fraternal organization based in New Haven, Conn., weighed in with $250,000.

There also are amendments proposing to ban same-sex marriage on the ballots in Arizona and Florida, but part of what's focusing national attention on California -- and driving contributions across our state line -- is an argument being made in conservative online forums that the situation here poses a unique threat to religious liberty. This impression was reinforced among many religious traditionalists last month, when the California Supreme Court handed down another significant ruling regarding discrimination based on sexual orientation.

In that case, the court ruled that an Oceanside woman was impermissibly discriminated against when she was denied artificial insemination at a fertility clinic that routinely provided its patients such services. The clinic declined to perform the procedure because the woman was a lesbian and the physicians' religious convictions did not approve of her domestic arrangements.

Conservative legal commentators and others have argued that the ruling in that case, coupled with the Supreme Court's opinion on the marriage case, signals a situation -- unique to California -- in which an influential state court has decided that equal protection considerations should trump 1st Amendment guarantees of religious freedom. Some contend that the ruling in the same-sex marriage case obliges churches, synagogues and mosques that rent out their social halls for wedding receptions to make them available for ceremonies involving gays and lesbians. Next, according to this argument, clergy will be compelled to officiate at such ceremonies, regardless of their religious objections.

These arguments may make for good fundraising appeals, but they're without merit. The Supreme Court's ruling in the fertility clinic case simply means that if a physician routinely provides a service, he or she must provide it to all eligible patients without discrimination. That's because the practice of medicine is a business governed by the laws that regulate commerce. The clergy's exercise of its religious functions, in contrast, is wholly protected by the 1st Amendment.

We wouldn't now tolerate a doctor who only did heart surgery on white men, for example. If a doctor never provides a particular service out of religious conviction -- say abortion -- there is no theory under which a court would compel him or her to do so.

Similarly, the court's ruling on marriage deals solely with its civil variant. There is no supportable legal theory that could compel clergy to perform sacramental marriage in violation of their conscience or their denomination's doctrinal norms.

The issues raised by Proposition 8 are divisive enough. There's no reason to exacerbate them with phony anxieties over religious freedom.

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timothy.rutten@latimes.com

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