People upset by the passage of Proposition 8, the anti-gay marriage initiative, protest at the California State Capitol in Sacramento on Sunday, November 9, 2008. Photo copyright Kelly B. Huston – Photo Credit Flikr: Kelly Huston (CC)

 

 

By Jason Hines, PhD –

 

Ten years ago the state of California found itself embroiled in a debate over the nature of marriage. Listed on the ballot for the Fall elections was Proposition 8, which would amend the state constitution to define marriage as between a man and a woman. Although marriage amendments were on several state ballots in 2008, for some reason California’s ballot initiative received the most attention, as money and manpower poured into the state in support of the proposition which was created to challenge prior state court opinions that had found that statutory prohibitions on same-sex marriage were unconstitutional.  Seventh-day Adventists waded into the public debate,  creating mirrored websites, Adventist For and Adventists Against Proposition 8.

Prop 8 Protest

Proposition 8 Protestors in California – 2008 – Flickr photo credit: brenbot.

One of the arguments cited by Conservative Evangelicals was that an expansion of marriage to include same-sex couples would have deleterious effects on religious liberty in general and churches in specific. Those in support of Proposition 8 used a varied media blitz, spreading the message that should Proposition 8 fail, churches that did not marry same-sex couples based on their religious beliefs would be sued and could lose their tax-exempt status. (Laurie Goodstein, “A Line in the Sand for Same-Sex Marriage Foes,” New York Times, Oct. 27, 2008, A12) The Seventh-day Adventists involved in this debate also worried about the future of religious liberty predicated on the successful passage of Proposition 8. Before the election, religious liberty organizations headed by Seventh-day Adventists warned of legal challenges across the country that pitted gay rights against religious liberty, arguing that the passage of Proposition 8 was the way to save religious freedom rights for those who believed in traditional marriage. With respect to religious liberty more generally, one Adventist scholar warned that the failure of Proposition 8 would create a backlash against rights for same-sex couples that threatened to curtail more established rights like freedom of speech and religious liberty. More conservative Adventists also echoed the sentiments about the consequences for religion should Proposition 8 not pass. The Church State Council warned that “…same-sex marriage threatens the very existence and survival of organized religion in America.” (Note: In the referenced piece, the writer alludes to other work in which the idea cited is more fully explained. Those articles are no longer available online.)

Interestingly enough, while Conservative Evangelicals won the battle over Proposition 8, they lost the war.  California voters approved Proposition 8 by a margin of 52% to 48%. Two years later, a district court judge overturned Proposition 8 as unconstitutional based on violations of both the Due Process and Equal Protection Clauses of the 14th Amendment. The District Court’s ruling survived on appeal, and the Governor of California decided not to pursue the appeal. A conservative group stepped in to support Proposition 8, and in 2013 the United States Supreme Court ruled that this group did not have jurisdictional standing to challenge the District Court’s ruling when the state did not appeal the decision. As such the 2010 decision stood and same-sex marriage became legal in California.

In 2015 the Supreme Court ruled in Obergefell v. Hodges that the same Due Process and Equal Protection clauses allowed for a fundamental right of civil marriage for same-sex couples. As a result, same-sex marriage became legal nationwide.

In light of the demise of Proposition 8, it is a useful exercise to examine the landscape on this important issue in the ten years since the debate over same-sex marriage in California. Some of the concerns of conservative religious liberty advocates were valid. However, their statements about the future of religion and the effect of same-sex marriage on churches, in particular, were overstated at best.

The battlefield between the rights of same-sex couples and religious liberty is currently in the industries that surround the wedding event. For example, even before Obergefell found a right to same-sex marriage, a New Mexico Court found that a photographer could not use religion as a pretext not to photograph a same-sex commitment ceremony. After argument heard earlier this year, the U.S. Supreme Court is currently considering Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case in which a baker cited his religious beliefs as the reason not to bake a cake for a same-sex couple. These cases appear to be zero-sum games in which anti-discrimination laws for same-sex couples are pitted against the shop owner’s right of conscience in not wanting to take part in a ceremony with which the owner does not agree because of their faith. It is almost impossible to predict what the Court will rule in this instance, but we know that either the realm of anti-discrimination law or the realm of religious liberty law will be forever changed.

There has been no case where the state forced a church to conduct a same-sex marriage against their beliefs, and there has been no recorded case of a state losing their tax-exempt status based on their unwillingness to perform same-sex weddings.

What we have not seen, however, is particular churches being challenged to forsake their beliefs and accommodate same-sex couples against their will. There has been no case where the state forced a church to conduct a same-sex marriage against their beliefs, and there has been no recorded case of a state losing their tax-exempt status based on their unwillingness to perform same-sex weddings. The closest case on this question is Knapp v. City of Coeur d’Alene. The Knapps owned and operated the Hitching Post Wedding Chapel. After the city passed an ordinance prohibiting a public accommodation from discriminating against people based on sexual orientation, the Knapps sued to assert their right to decide who could use their chapel. The case was partially dismissed and it was discovered that the chapel was registered as a religious organization and as such was exempted from the ordinance. The city eventually settled the suit.  Of course, there are several distinguishing facts in this case. First, the wedding chapel is not a church (although it is registered as a religious organization). Second, the law struck a compromise in exactly the way it should – providing equality for same-sex couples while carving out an exemption for people of faith who make their beliefs known and public.

During the legal fight over Proposition 8 the California Supreme Court wrote, “no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.” It seems that in jurisdictions around the country this statement remains true. (183 P.2d 384, 451-452 (2008))

The ten years since California debated the issue of same-sex marriage have been a time of tremendous social change. It is doubtful that anyone could predict that the right of same-sex marriage would progress from an issue that could be defeated on several state ballots to the generally accepted law of the land in less than a decade. From a religious liberty perspective, the results (and the predictions) were a mixed bag. Many of the issues scholars predicted remain concerns. How the religious beliefs of private citizens affect their public business is an unsettled question. However, the right of free exercise for religious institutions remains secure. Churches and organized religion as a whole retain their rights to free exercise on the question of which marriages they will solemnize, and that right seems as strong today as it was in 2008.

 

 

Jason Hines is a Harvard law school graduate with a doctorate in Religion, Politics, and Society from the J.M. Dawson Institute of Church-State Studies at Baylor University. He is also an assistant professor at Adventist University of Health Sciences. 

 
 

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