Does CA's Proposition 8 infringe on the Bill of Rights?

October 9, 2008 9:15 PM

If California's Proposition 8 passes, would churches who do perform same-sex marriages be able to appeal to the Supreme Court, arguing that their religious rights are being infringed?

If not, why not?
Has there been any speculation to that end in the media or in blogs?

posted by BuddhaInABucket to law & government (9 comments total)

Churches are not affected by Prop 8 one way or another, despite what the ad told you. Churches that choose to perform same sex marriages will be able to continue to do that, unfettered by any state or federal law. The couple getting married however, would not have any legal standing as married, and none of the rights that we currently have, were Prop 8 to pass.

Were Prop 8 to pass, churches that wanted to perform same sex marriages could, and those that do not want to perform them will not. I don't see how any church would have any legal standing to sue, as neither their legal rights nor their practice will be affected in the least. I have seen no speculation on that.
posted by gingerbeer at 9:36 PM on October 9, 2008 [1 favorite has favorites]

Your religious rights from the Constitution do not guarantee that the state recognizes your religious rites.

You need a marriage license to be legally married in the US. The religious ceremony itself does not give you any legal rights, although some states recognize common-law marriages.

I'm not an expert, but I don't think a supreme court challenge would work. There has already been a similar amendment passed in Virginia and I don't believe it has been challenged on this ground.
posted by demiurge at 9:40 PM on October 9, 2008

This article, about a SCOTUS decision from 1990, is probably relevant. It deals with another attempt to protect an illegal practice through the First Amendment.

It's about a case where a practitioner of a native American religion claimed that his use of peyote as a religious sacrement was protected by the First Amendment. SCOTUS said it wasn't.

The fundamental problem with "free exercise" arguments is where to draw the line. If you belong to a religion that practices human sacrifice, does the First Amendment protect you from prosecution for murder? Of course not. But then, just what religious practices are protected by the "free exercise" clause?

Another example is laws forbidding polygamy. Some religions permit it but attempts to claim First Amendment protection for the practice are routinely rejected by the courts. From the article linked above:

The Court held that the First Amendment's protection of the "free exercise" of religion does not allow a person to use a religious motivation as a reason not to obey such generally applicable laws. "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Thus, the Court had held that religious beliefs did not excuse people from complying with laws forbidding polygamy, child labor laws, Sunday closing laws, laws requiring citizens to register for Selective Service, and laws requiring the payment of Social Security taxes.

GingerBeer is correct: any minister in California who wants to can perform a marriage ceremony between two men, or between two women. That will continue to be the case if that ballot measure passes, but any such marriage won't have any legal standing as far as the State of California is concerned.
posted by Class Goat at 10:00 PM on October 9, 2008

By the way, there isn't anything new about your idea. This whole issue has long since been explored because attempts by Mormons to gain legal protection for their practice of polygamy. See for instance Reynolds vs. United States.
posted by Class Goat at 10:31 PM on October 9, 2008

But of course, there's always the "Amish Exception" a la Wisconsin v. Yoder. I doubt, however, that the gay marriage movement carries the same cachet of "wholesomeness" that the Amish have in American society. Having said that, I agree with GingerBeer.

BTW: Yoder is a classic Supreme Court decision that you would think a funde like Sarah "I Read Everything" Palin would recall. Just saying.
posted by webhund at 12:47 AM on October 10, 2008

@gingerbeer

Were Prop 8 to pass, NO ONE would be able to perform same sex marriages.
posted by Sophie1 at 7:25 AM on October 10, 2008

I think gingerbeer is drawing a distinction between performing a religious ceremony recognizing a union and executing a state-issued license granting a legal status. Sophie1 is correct about the latter but the proposition would not apply to the former. I don't think the religious freedom argument is at all robust in this context.
posted by nanojath at 10:31 AM on October 10, 2008

Also, it's important to note that IF anyone has standing to sue in this instance, it would most certainly be the individuals seeking the right to marry and not the religious institution hoping to perform such unions.
posted by greekphilosophy at 1:12 PM on October 10, 2008

Sophie1 - were Prop 8 to pass, any religious institution that chose to perform same sex wedding ceremonies would still be able to do so, as they were before the CA Supreme Court decision earlier this year. Prop 8 really has no bearing on religious practice at all. The difference is that the couples involved would have no legal rights to have their relationship recognized. As nanojath points out, there's a distinction between religious ceremonies and legal status.
posted by gingerbeer at 3:32 PM on October 10, 2008