Proposition 8 Ban On Same-Sex Marriage Has No Legitimate Basis, AU Tells Appeals Court

Like Historic Opposition To Interracial Marriage, California Measure Is Based On Intolerance, Psuedo-Science And Religious Dogma, Says AU Brief

California’s ban on civil marriage for same-sex couples is based on intolerance, pseudo-science and religious dogma, not legitimate public policy concerns, Americans United for Separation of Church and State has told a federal appeals court.

In a friend-of-the court brief, Americans United advised the 9th U.S. Circuit Court of Appeals that opposition to marriage equality for gay couples reflects the same baseless and inappropriate considerations that once were used to deny marriage rights to slaves and interracial couples.

The brief was filed in Perry v. Schwarzenegger, a closely watched lawsuit that challenges Proposition 8, a California referendum that revoked the right of same-sex couples to obtain civil marriages. The drive to enact the measure was funded and staffed primarily by fundamentalist Protestant churches, the Roman Catholic hierarchy and the Church of Jesus Christ of Latter-day Saints (the Mormons).

Said the Rev. Barry W. Lynn, Americans United executive director, “American law should be based on equality and fairness, not the doctrines of aggressive religious groups. Proposition 8 is grounded in intolerance and sectarian dogma, and the appeals court should reject it.”

The brief, filed jointly Oct. 25 with the Howard University School of Law Civil Rights Clinic, notes that historically opponents of marriage rights for slaves and interracial couples argued that such unions were a threat to the social order and the institutions of marriage and family. They also claimed that such marriages violated their interpretation of the Bible.

Observes the brief, “Even though reliance on religious doctrine as the basis for public policy is as improper today as it was in the days of anti-miscegenation laws, today opponents of marriage between two persons of the same sex use (their) Biblical interpretations to suggest that homosexuality is unnatural because it is against God’s will. Indeed, like their anti-miscegenationist counterparts, opponents of marriage for same-sex couples almost always attempt to clothe their arguments in literal and selective interpretations of the Bible.”

Asserts the brief, “Today, while there is no longer any serious claim that marriage rights should be denied on the basis of race, opponents of marriage equality have attacked same-sex couples, using precisely the same flawed arguments that once were used to justify racial slavery and apartheid. We are now long past the time when anyone would seriously claim that race-based marriage equality threatens the moral fabric of our civilization, is contrary to nature, or is harmful to children.

“Therefore,” the brief concludes, “the onus should be on opponents of marriage equality to demonstrate how arguments that time and experience have so thoroughly rejected in the context of race should now be dug up, dusted off, and given any consideration, much less credibility, in the context of marriage for same-sex couples.”

In addition to AU and the Howard Civil Rights Clinic, six professors at Howard University School of Law and four law student organizations also expressed support for the brief.

The brief was written by Aderson B. François, Civil Rights Clinic Supervising Attorney at Howard University School of Law, in cooperation with Americans United Legal Director Ayesha N. Khan and attorneys with the firms of Manatt, Phelps & Phillips LLP and Keker & Van Nest LLP.

Americans United is a religious liberty watchdog group based in Washington, D.C. Founded in 1947, the organization educates Americans about the importance of church-state separation in safeguarding religious freedom.