Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Same-sex Marriage & Religious Freedom

Chelsea Langston


In February, a three-judge federal appeals court panel struck down Proposition 8, the initiative endorsed by California voters in 2008.  Had Proposition 8 been upheld, the California state constitution would have been amended to include the definition of marriage as an institution exclusively between one man and one woman.  Under Proposition 8, same-sex couples in California, although not allowed to marry, would still have been eligible to receive basically equivalent state rights and benefits under domestic partnerships as heterosexual married couples.  Proposition 8 passed by 52 percent to 48 percent, with over 7 million Californians in favor of the legislation.  But in a 2-to-1 decision, the appeals court upheld the 2010 ruling which found that Proposition 8 violated the constitutional rights of homosexual people in California, specifically, the rights of two same-sex couples who had sued under the Equal Protection Clause of the U.S. Constitution. 

Proposition 8 and the subsequent litigation involve many legal complexities, and many Christians—even those who believe marriage is ordained by God as between one man and one woman—come to different conclusions about what their response to this ruling should be.  Some will reach the conclusion that the government has a responsibility to determine what is in society’s best interest and will therefore advocate for legislative measures such as Proposition 8 that establish marriage in law as a heterosexual institution.  Others will look to the courts to protect the constitutionality of laws and voter initiatives that identify the scope of marriage.  Still others will support, or at least see the pragmatic need for, state-recognized domestic partnerships as an option for same-sex couples. 

Further complicating the Christian response to same-sex marriage is the wide range of approaches that have been adopted in individual states.  Some states grant marriage licenses to same-sex couples, while others recognize same-sex marriages performed in other states, and still other states are currently considering similar measures. In these states, it is vital that we address the rights of faith-based organizations and individuals to stay true to their faith tenets; they should not be forced to recognize these same-sex marriages as valid when doing so would cause these groups or individuals to violate their religious beliefs. 

In its Guideline for Government and Citizenship on Homosexuality, the Center for Public Justice states: “In addition to recognizing the civil rights of individuals, public law should also recognize the rights of certain institutions and organizations—such as marriage, family, church, university and corporation.  Only by doing this can government do justice to diverse institutions of a complex society.” As this guideline makes clear, where same-sex marriage is becoming legalized, legislatures should be just as concerned about maintaining the rights of faith-based institutions who oppose same-sex marriage for religious reasons. This sentiment is also well articulated in the Center’s Guideline on Religious Freedom: “This Guideline as well as the First Amendment should be interpreted to recognize the religious freedom of non-governmental organizations and institutions, as well as of individuals. As long as they are freely formed, churches, social service organizations, schools, and other organizations should enjoy the freedom to articulate and maintain their purposes.” If same-sex marriage is to be legal in California and in other states, we should be no more concerned with trying to overturn it than we should be concerned with protecting the rights of religious individuals and religious groups who feel it goes against their values and purposes to recognize same-sex marriage as valid. 

I would urge the people of California and the legislature to create broad, robust protections for churches, para-church organizations, and individuals who feel their faith values would be violated by the recognition of same-sex marriage.  Church-affiliated adoption agencies and foster care organizations should not be forced to treat same-sex married couples equally when it comes to child placement if doing so would go against the organization’s religious doctrine.  Likewise, a religious college should not be required to offer married student housing to same-sex married couples if this would violate the school’s beliefs.  Regardless of the response of state and federal governments regarding same-sex marriage, we must work to preserve the freedom of religious organizations to act in keeping with their religious convictions.

—Chelsea Langston works at a consumer advocacy organization in Washington, D.C.  Before coming to D.C., she worked as an attorney at the Michigan nonprofit Common Ground in their Legal Services Department.  She participated in the Center for Public Justice public policy leadership program Civitas in 2010.


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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”