Written by Don Byrd
While this is far from the headline of today’s 9th Circuit ruling invalidating California’s moratorium on same-sex marriage, Proposition 8, the court did address, and dismiss, one argument related to religious liberty raised in friend-of-the-court briefs. Protecting religious liberty in the state, the argument goes, provides a legal justification for the referendum. The problem with that claim, the court countered, is that religious liberty is unchanged by the measure.
From today’s opinion (pdf):
There is no dispute that even before Proposition 8, “no religion [was] required to change its religious policies or practices with regard to same-sex couples, and no religious officiant [was] required to solemnize a marriage in contravention of his or her religious beliefs.” Rather, the religious-liberty interest that Proposition 8 supposedly promoted was to decrease the likelihood that religious organizations would be penalized, under California’s antidiscrimination laws and other government policies concerning sexual orientation, for refusing to provide services to families headed by same-sex spouses. But Proposition 8 did nothing to affect those laws. To the extent that California’s antidiscrimination laws apply to various activities of religious organizations, their protections apply in the same way as before. Amicus’s argument is thus more properly read as an appeal to the Legislature, seeking reform of the state’s antidiscrimination laws to include greater accommodations for religions organizations. This argument is in no way addressed by Proposition 8 and could not have been the reason for Proposition 8.
