Is sexual freedom more important than religious freedom?

Here are parts of an article written by Laura Bunker President of the Utah branch of United Families International. I think this is a very important issue and I suggest everyone read this.


Perry v. Schwarzenegger, or the Prop 8 trial as it is commonly known, is a huge, landmark trial.  It is the first marriage case in the history of our nation where the “thoughts, motivations, and personal beliefs” of the voters are on trial for “improper intent” (Prentice, Ferriss, Wickman).  Did the seven million voters who voted for Prop 8 have a right to let religious beliefs influence their vote?  Or were their religious motives “irrational,” discriminatory, and unconstitutional?  The stakes are high in this historic case with respect to both religious freedom and traditional marriage.  The Prop 8 trial could change religious freedom as we know it in America.  If California redefines marriage to include same-sex couples, such a ruling would threaten the free exercise of religion throughout the United States.

Brief History and Explanation
Perry v. Schwarzenegger is a federal lawsuit challenging the constitutionality of  Proposition 8.  Two gay couples are the plaintiffs, represented by the “legal dream team” of Ted Olson and David Boies–the famous attorneys who opposed each other when they represented George W. Bush and Al Gore in the 2000 presidential election legal battle (Richardson).  The job of defending the California voters would normally have fallen to California Attorney General Edmund G. Brown, but “in this case he refused, citing his strong opposition to the initiative” (Richardson).  Therefore, the pro-marriage coalition had to find–and fund–their own legal counsel.  The Prop 8 legal defense team was led by Charles Cooper, former assistant attorney general under President Reagan, and included attorneys from his law firm and the Alliance Defense Fund, as well as Andy Pugno, General Counsel for the “Yes on 8″ campaign(Richardson, Prentice).  The evidence portion of the trial took place between January 11, 2010, and January 28, 2010, and was presided over by U.S. District Court Judge Vaughn Walker. (Walker ruled to overturn proposition 8.)

A ruling to overturn Prop 8 could have huge repercussions. First, it could change the definition of marriage throughout America. “The Perry case’s implications for marriage are enormous. If. . . Judge Walker declares that Proposition 8 violates the U.S. Constitution, not only will same-sex marriage become law in California, but traditional marriage laws in every state will be vulnerable to federal legal challenges” (Richardson).  In other words, if California’s marriage amendment is overturned, the marriage amendments in other states could be challenged in federal court and overturned as well.   Secondly, if this case is successful, it could undermine every citizen’s fundamental right of “freedom of religion” throughout America.
Freedom of Religion:  What it is and What it is not
The First Amendment of the Constitution guarantees, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (US Constitution).  Dallin Oaks, former Utah Supreme Court Justice, notes that the free exercise of religion is accepted by many legal experts as “a cornerstone of American democracy” (Oaks, section IV).  However, there is a troubling movement going on right now to change this paramount “freedom of religion” into “freedom of worship.”  Many world leaders, including President Obama are starting to use the new phrase “freedom of worship” instead of “freedom of religion” (Samelson).
What is the difference?  Freedom of religion includes “both the right to choose religious beliefs and affiliations and the right to exercise or practice those beliefs” (Oaks, section IV).  Freedom of religion is the right to live according to one’s religious dictates, including the right of Jews to keep kosher, Muslim women to wear headscarves, and LDS missionaries to proselytize (Samelson).  Freedom of religion also includes the right of individuals to exercise their personal religious beliefs in the workplace. For example, because of religious beliefs, a nurse may choose not to participate in an abortion, or the owners of a bed-and-breakfast may decline to have a same-sex couple stay overnight together in their home.  In addition, Francis Cardinal George, President of the U.S. Conference of Catholic Bishops, points out that freedom of religion also means that “religious groups as well as religious individuals have a right to exercise their influence in the public square” (George, p. 4).  Religious freedom “includ[es] the right to engage in the political life of a nation” (Farr) through individual or group effort.
On the other hand, “freedom of worship” infers some government control. For instance, “Lenin permitted freedom of worship. . . but not freedom of religion” (George, p. 4). Individuals are still able to privately practice their religious beliefs in their chapels and homes, or as Cardinal George puts it, “as long as you don’t make anybody else unhappy” (George, p. 4), but the government determines how church members exercise those beliefs in public. Specifically, if the government decided that same-sex marriage was a “good” thing worth protecting, then the religious bed-and-breakfast owners mentioned above would have little choice but to comply with the request if they wanted to avoid a lawsuit (Duncan). Religious people would feel social pressure to keep their private values to themselves as they go about their public business.
One example of government-controlled “freedom of worship” is already happening in Massachusetts, where same-sex marriage became law in 2004. In 2005 and 2006, several Christian parents in Lexington were disturbed when their children were taught about same-sex marriage in their kindergarten and second grade classrooms, without the parents’ knowledge.  When one of the fathers pressed the school principal for the option to remove his child from these lessons, he was arrested and spent a night in jail (McElroy). The parents later filed a lawsuit, but “both the district court and the Court of Appeals ruled against them, stating that parents had no right to be notified of this instruction or to remove their children from class while gay marriage was being taught” (Prentice).  The court declared that “the state’s interest in educating public school children about gay marriage outweighed the religious freedoms and parental rights of parents who object to same-sex marriage on moral grounds” (Prentice).  Essentially, the Massachusetts government determined that gay marriage was a “good thing” to be protected over the religious beliefs that the parents thought were a “good thing.” As a result, currently parents in that state cannot currently opt their children out of classroom instruction regarding gay marriage.
In addition to impacting one’s daily affairs, “freedom of worship” would also restrict religious participation in social and political issues.  Members of churches might not be able to fully participate in political dialogue about social or cultural rights (Wickman  p. 5).  Whether or not the church members use religious language in their arguments, just defending traditional marriage could make them “suspect” for being “irrational” or discriminatory (Duncan).  In a way, the Perry v. Shwarzenegger trial has already begun this scenario.  Even though my family and the vast majority of pro-marriage citizens used social science and legal reasons to encourage people to vote for Proposition 8, they are now being sued in federal court simply because many of them were members of churches.
The difference between freedom of religion and “freedom of worship” is who determines what we value–the people or the government? Andy Pugno, a defense attorney in the Prop 8 trial pointed out, “The controlling legal issue [here] is not whether homosexual marriage is good or bad, but rather whether the people have a right to decide what is best” 

How the Same-Sex Marriage Debate has Already Impacted Freedom of Religion
Even before the Prop 8 trial, the same-sex marriage debate has been gradually chipping away at religious freedoms.  Advocates for same-sex marriage claim that “homosexuality is an immutable characteristic” (Eastman), and that sexual orientation and gender identity should become the new civil right, along with race, color, sex, national origin, disability, age, and religion (Human Rights Campaign).  However, making homosexuality a civil right will ironically create two conflicting protected classes: sexual orientation and religion.  Can the law give “equal” protections to two opposing groups?  Can one class’s rights trump another?  Apparently so.  Even without having official “protected class” status, gay rights are challenging religious rights in courtrooms and classrooms across the nation, “and so far, the religious groups are losing” (Hagerty).
For example, when same-sex marriage became legal in Massachusetts, state law required Catholic Charities adoption services to place children with same-sex couples. Catholic Charities tried to exempt themselves from this requirement, but lost the legal battle.  As a result, rather than conform to a law that conflicted with their religious beliefs, in 2006 they decided to close their doors (Hagerty).   A California gynecologist was sued by his patient when he declined to perform an in vitro fertilization on a lesbian patient because of his religious beliefs.  In 2008 the California Supreme Court ruled against the doctor, suggesting that he “take up a different line of business” (Hagerty, Salmon).  A Christian photographer in New Mexico who refused to photograph a gay couple’s commitment ceremony, was sued and forced to pay $6,637 to cover the lesbian couple’s legal fees (Hagerty, Salmon).  When a New Jersey Methodist group declined to let a gay couple use its beachside pavilion for their civil union ceremony, the church lost its property tax exemption (Hagerty, Salmon).  And in Colorado, a youth minister actually sued her own church for teaching that homosexuality is a sin and incompatible with scripture (Severino).   Although this particular case was dismissed, one is left to wonder how long it will take before a lawsuit against a church’s teachings is upheld.

Summary and Conclusion
Perry v. Schwarzenegger is the culmination of a long-standing debate of gay-rights versus freedom of religion.  If this trial reaches the Supreme Court and is ruled favorably, homosexuality and same-sex marriage will become the new protected class or civil right in America.  However, the “equal rights” demanded by the gay-rights movement translate into “more equal” than the religious rights of other citizens. Religious citizens across the nation are already feeling the pain of losing their freedoms, their parental rights, their jobs, and their savings, and if same-sex marriage becomes law these legal battles will increase. This ruling would also stigmatize religious citizens as discriminatory, undermining their legitimate voice in public debate and potentially restricting public religious practices including proselytizing.
In essence our government would be forcing a new government-imposed value on all Americans–that sexual freedom is more important than religious freedom. This would limit citizens’ free exercise of religion in the public square, conflicting with the First Amendment and turning our freedom of religion into government-controlled “freedom of worship.”  In this sense, Perry vs. Schwarzenegger would quite literally be the beginning of the end of religious freedom as we know it in America.

Works Cited

American Foundation for Equal Rights. Hearing Transcripts. Perry Trial Day 7. US District  Court Northern District of California. 20 Jan. 2010. Web. 9 Jun. 2010.  American Foundation for Equal Rights. Recent News. “Text of Ted Olson’s Opening Statement in Prop 8 Trial – As Prepared.” 11 Jan. 2010. Web. 9 Jun. 2010.
Dolan, Maura. “Arguments begin in federal Prop. 8 trial.” Los Angeles Times. Los Angeles Times. 11 Jan. 2010. Web. 2 Jun. 2010.
Duncan, William C. Personal Interview. 10 Jun. 2010.
Eastman, John C. “Prop 8 trial set up aids gay marriage side.” CNN Opinion. CNN. 12 Jan. 2010. Web. 2 Jun. 2010.
Farr, Thomas. “Obama at the crossroads on religious liberty.” The Washington Post. The Washington Post. 6 May 2010. Web. 2 Jun. 2010.
Ferriss, Susan. “At heart of Prop. 8 trial, a clash over motives.” Sacramento Bee. Sacramento Bee. 19 Jan. 2010. Web. 2 Jun. 2010.
George, Francis. “Catholics and Latter-day Saints: Partners in the Defense of Religious Freedom.” Brigham Young University. Provo. 23 Feb. 2010. Lecture.
Hagerty, Barbara Bradley. “When Gay Rights and Religious Liberties Clash.” NPR.org. June 13, 2008. Web. 2 June 2010
Human Rights Campaign. About Us. n.d. Web. 2 Jun. 2010.
Jones, Ashby. “Prop. 8 Defenders Say Plaintiffs Attacked ‘Orthodox Religious Beliefs’.” Wall Street Journal Law Blog. Wall Street Journal. 10 Feb. 2010. Web. 2 Jun. 2010.
Lindenberger, Michael. “Gay Marriage Trial Rests, and a Key Ruling Awaits.” Time. Time Inc.,29 Jan. 2010. Web. 2 Jun. 2010.
Matier, Phillip and Andrew Ross. “Judge being a gay a nonissue during prop 8 trial.” San Francisco Gate. Hearst Corporation. 7 Feb. 2010. Web. 2 Jun. 2010.
McElroy, Wendy “Parental Rights vs. Public Schools” Fox News. 10 Aug. 2005 Web. 5 Jun. 2010
Oaks, Dallin H. “Religious Freedom.” Brigham Young University Idaho. Rexburg. 13 Oct. 2009. Lecture.
Prentice, Ron. “Testimony Concludes But the Battle is Just Beginning.” ProtectMarriage. ProtectMarriage. 6 Feb. 2010. Web. 2 Jun. 2010
Richardson, Valerie. “Same-Sex Marriage Now on Road to Supreme Court.” Human Events 18 Jan. 2010: 18. Print. 


I would have to say, that I do not know any religious person who has treated a homosexual person with contempt of any kind. I do not know anyone who thinks gay couples shouldn't have the right to share health insurance, or taxes, or anything of the sort. However, I  do not want my children being taught about gay marriage or homosexuality in school, and I think that schools should allow the parents access to the curriculum reguardless of the topic of study . I feel like doctors should be able to treat whom they will, and that religious professors can state  "the bible says that homosexuality is a sin." without being sued or losing their jobs. I feel like religious buildings and sites should be able to decide for who and what the places can be used for. Religion and religious views are literally on trial, and so far they are losing, and what they are losing to is sexual freedom.