Churches weigh in on same-sex marriage

Bob Egelko, Chronicle Staff Writer
Monday, February 18, 2008


The legal battle over same-sex marriage in California is also a clash of religions.

As the state Supreme Court prepares for a three-hour hearing March 4 on the constitutionality of a state law allowing only opposite-sex couples to marry, the justices have been flooded with written arguments from advocates on both sides - including two large contingents of religious organizations with sharply differing views.

On one side are the Mormon church, the California Catholic Conference, the National Association of Evangelicals and the Union of Orthodox Jewish Congregations. They describe marriage between a man and a woman as "the lifeblood of community, society and the state" and say any attempt by the courts to change that would create "deep tensions between civil and religious understandings of that institution."

On the other side are the Unitarians, the United Church of Christ, the Union for Reform Judaism, the Soka Gakkai branch of Buddhism, and dissident groups of Mormons, Catholics and Muslims. Saying their faiths and a wide range of historical traditions honor same-sex unions, they argue that the current law puts the state's stamp of approval on "the religious orthodoxy of some sects concerning who may marry."

Those groups won't be represented at next month's oral arguments, when the court will hear from the parties in the case: same-sex couples and the city of San Francisco, challenging the marriage law, and the attorney general's and governor's offices, defending the law. Also participating will be lawyers seeking to intervene on behalf of two organizations opposing gay rights.

The religious groups' written arguments, known as friend-of-the-court briefs, play the less-visible but important role of advising the justices how their ruling could affect society. Courts at all levels sometimes cite those arguments to buttress their legal reasoning.

Fifty such briefs have been filed in this case, representing hundreds of organizations and individuals - professional associations of psychologists and anthropologists, city and county governments, law professors, businesses, civil rights organizations, one former state Supreme Court justice, and advocates of "alternatives to homosexuality."

The religious coalitions have enlisted legal heavyweights: for opponents of same-sex marriage, Kenneth Starr, the former U.S. solicitor general, federal judge and impeachment prosecutor of former President Bill Clinton; and for their adversaries, Raoul Kennedy, a prominent San Francisco attorney.

Starr said the denominations he represents have gained their knowledge about marriage in "millions of hours of counseling and ministry."

"We have seen at close range the enormous benefits that traditional male-female marriage imparts," he wrote. "We have also witnessed the substantial adverse consequences for children that often flow from alternative household arrangements."

The "inescapable truth," Starr said, is that "children need their mothers and fathers, and that society needs mothers and fathers to raise their children."

His clients' argument is not based on their religious beliefs, he said, but on "historical and sociological facts about what marriage has always been across time and cultures," and on the doctrine that courts must let the people and their representatives decide such fundamental questions.

He added a note of warning: Religious organizations support civil marriage only because they agree with the way the law defines it.

"Creation of a genderless definition would fracture the centuries-old consensus about the meaning of marriage," Starr said, turning "a point of social unity" into "a point of social conflict."

Kennedy singled out that passage in his brief for denominations supporting same-sex marriage.

"Starr less than subtly threatens retribution if the court steps in to keep civil marriage neutral with respect to religion," he said.

Like Starr, Kennedy cited academic studies - though different ones - to support his historical position: that the tradition of marriage is nowhere near as uniform as the conservative denominations portray it.

He said same-sex marriages were recognized by the Christian church in the fifth century, were observed among natives by the first Spanish explorers in the Americas, were common among the Mojave Indians of the Colorado River in southeastern California, and have been documented in more than 230 African tribes.

Besides religious denominations, Kennedy's clients include about 80 churches and temples in California and more than 250 clergy members, some of whom perform same-sex weddings despite the state's refusal to recognize them.

"By sanctioning only marriages between a man and a woman, the state relegates the beliefs and practices of (these) religions, denominations and clergy to second-class status," Kennedy said.

He argued that such treatment violates the California Constitution's guarantee of "free exercise and enjoyment of religion without discrimination or preference," language that state courts have interpreted as separating church and state more strictly than the U.S. Constitution's First Amendment.

The state's original Constitution in 1849, Kennedy said, specified that no marriage contract could be invalidated on the grounds it conflicted with "the requirements of any religious sect," a passage that was removed and re-enacted as a statute in 1970.

In this case, Kennedy said, "the state has been pulled into the sectarian fray." He said his clients "do not ask the state to redefine marriage" but instead "ask the court to fulfill its role in our constitutional system ... by protecting the fundamental right to marry without discrimination," as it did in a pioneering 1948 ruling that struck down California's ban on interracial marriage.

But Starr said the 1948 ruling overturned a law rooted in racism, while the current marriage law - enacted in 1977, and reaffirmed by the voters in 2000 - is based on a cultural decision about parents and children that "reflects no animosity toward gays and lesbians," who are covered by domestic-partner laws.

"When it comes to the definition of marriage," Starr declared, "the stakes are simply too high for the issue to be decided by a handful of judges."



To learn more
To read any of the briefs in the case:


www.courtinfo.ca.gov/courts/supreme/highprofile


To attend hearing
Justices will hear arguments on March 4 on the constitutionality of California's law defining marriage as between a man and a woman. The hearing will be at 9 a.m. at 350 McAllister St., San Francisco.



The case is titled In re Marriage Cases, S147999. E-mail Bob Egelko at begelko@sfchronicle.com.

This article appeared on page A - 1 of the San Francisco Chronicle
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