Prop. 8 Ban Has No Legitimate Basis, Americans United Tells Appeals Court

California's
ban on civil marriage for same-sex couples is based on intolerance,
pseudo-science and religious dogma, not legitimate public policy concerns,
Americans United for Separation of Church and State has told a federal appeals
court.

In
a friend-of-the
court brief, Americans United advised the 9th U.S. Circuit Court of Appeals
that opposition to marriage equality for gay couples reflects the same baseless
and inappropriate considerations that once were used to deny marriage rights to
slaves and interracial couples.

The
brief was filed in Perry v. Schwarzenegger, a closely watched lawsuit
that challenges Proposition 8, a California referendum that revoked the right
of same-sex couples to obtain civil marriages. The drive to enact the measure
was funded and staffed primarily by fundamentalist Protestant churches, the
Roman Catholic hierarchy and the Church of Jesus Christ of Latter-day Saints
(the Mormons).

Said the Rev. Barry W. Lynn, Americans United executive
director, "American law should be based on equality and fairness, not the
doctrines of aggressive religious groups. Proposition 8 is grounded in
intolerance and sectarian dogma, and the appeals court should reject it."

The
brief, filed jointly Oct. 25 with the Howard University School of Law Civil
Rights Clinic, notes that historically opponents of marriage rights for slaves
and interracial couples argued that such unions were a threat to the social
order and the institutions of marriage and family. They also claimed that such
marriages violated their interpretation of the Bible.

Observes the brief, "Even though reliance on
religious doctrine as the basis for public policy is as improper today as it
was in the days of anti-miscegenation laws, today opponents of marriage between
two persons of the same sex use (their) Biblical interpretations to suggest
that homosexuality is unnatural because it is against God's will. Indeed, like
their anti-miscegenationist counterparts, opponents of marriage for same-sex
couples almost always attempt to clothe their arguments in literal and
selective interpretations of the Bible."

Asserts the brief, "Today, while there is no
longer any serious claim that marriage rights should be denied on the basis of
race, opponents of marriage equality have attacked same-sex couples, using
precisely the same flawed arguments that once were used to justify racial
slavery and apartheid. We are now long past the time when anyone would
seriously claim that race-based marriage equality threatens the moral fabric of
our civilization, is contrary to nature, or is harmful to children.

"Therefore," the brief concludes, "the onus
should be on opponents of marriage equality to demonstrate how arguments that
time and experience have so thoroughly rejected in the context of race should
now be dug up, dusted off, and given any consideration, much less credibility,
in the context of marriage for same-sex couples."

In addition to AU and the Howard Civil Rights
Clinic, six professors at Howard University School of Law and four law student
organizations also expressed support for the brief.

The brief was written by Aderson B. Francois,
Civil Rights Clinic Supervising Attorney at Howard University School of Law, in
cooperation with Americans United Legal Director Ayesha N. Khan and attorneys
with the firms of Manatt, Phelps & Phillips LLP and Keker & Van Nest LLP.