By Patricia Cain

The proponents of Proposition 8 have unleashed an ad in which a law professor proclaims that unless marriage rights are denied to same-sex couples, churches risk losing their tax exemptions. The claim is pure nonsense and any lawyer who makes such a claim should apologize for misleading the many religious leaders and congregations in this state who, because they are not legal experts, rely on those of us who are.

Our country was founded on the principle of separation of church and state. The U.S. Constitution guarantees separation of church and state. It also guarantees that an individual’s right of religious liberty is protected in every state in this country.

The California constitution provides similar guarantees. The California Supreme Court, the institution charged with construing the California constitution to ensure that it applies to all Californians equally, recognized the importance of these guarantees in its decision in the marriage cases. As the Court explained: “[A]ffording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.”

There is absolutely no legal basis for the claim in the proponent’s ad that churches may lose their tax exemption. The claim is nothing more than an attempt by the opponents of equal marriage to instill fear among the religious faithful in the hopes that they will flock to the ballot box and cast a vote to protect their churches.

Citizens of California need to check their fears against what we all know about religious freedom in this country. Churches and other religious institutions are free to follow their religious tenets and to conduct whatever sacraments and services are consistent with those tenets.

Churches in Massachusetts, where marriages between same-sex partners have been performed for over four years, can and do refuse to marry same-sex couples. Not a single church has been threatened with the loss of tax-exempt status. There is no risk that they will be threatened because the IRS and state tax authorities are bound by the guarantees of religious freedom in the First and Fourteenth Amendments of the United States Constitution.

When New Jersey adopted civil unions for same-sex couples in 2006, fears arose in that state that religious organizations would be forced to perform same-sex unions. On January 10, 2007, the New Jersey Attorney General issued a formal opinion concluding that religious institutions are not required to endorse or perform same-sex commitment ceremonies since they are protected by both the state and federal constitutions. The opinion cited relevant United States Supreme Court precedent. That same precedent applies in California.

Our country is strongest when the rights of all are protected. The separation of church and state is a necessary precondition for the protection of individual liberty and equality. We live in a public world full of differences of opinion and that is good. We get our strength from our private worlds where individual conscience and matters of faith reside. California’s constitution is a document that governs our public world. It should not be amended to deny the rights of some because of an unfounded fear that some voters’ religious freedoms are in jeopardy.
Cain is the Inez Mabie Distinguished Professor of Law at Santa Clara University and past president of the Society of American Law Teachers.
Copyright (C) 2008 by the American Forum. 10/08