Well, it was a finding of fact (suppored by evidence) in this particular case, not a legal holding. Moreover, the context is the plaintiffs' arguments that Prop 8 was inappropriately enacted in part on the basis of religious beliefs; not that religious beliefs were part of the debate, which is of course acceptable, but rather that Prop 8 effectively enacts religious doctrine in order to abridge 14th Amendment rights. No one familiar with Prop 8 -- least of all its proponents -- thought it was merely about some sort of secularly motivated discrimination. So I don't see that the judge could or should have simply avoided the question. Even if such a finding of fact were problematic for free exercise, as Will suggests, the enactment of religiously motivated discrimination seems to me more problematic from the standpoint of establishment. Steve Sanders _____
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser Sent: Friday, August 06, 2010 4:05 PM To: Religion Law Subject: Perry v. Schwarzenegger - Effect of Religious Beliefs In the district court's recent opinion regarding the constitutionality of Proposition 8, Judge Walker included the following as Finding of Fact #77 (page 103 of the opinion): "Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians." I am troubled by the fact that Judge Walker's finding is tied to religious "beliefs" rather than simply talking about discriminatory"actions" (which can presumably be dealt with by appropriately drafted non-discrimination laws and which may be caused by either religious or non-religious beliefs). A finding that religious beliefs themselves "harm" other people (particularly a particular class of people which Judge Walker concludes are entitled to strict scrutiny review as "the type of minority strict scrutiny was designed to protect") strikes me as a conclusion that could lead to problematic First Amendment issues related to both freedom of religion and speech. Others thoughts on this particular finding? Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina ******************** "We can easily forgive a child who is afraid of the dark; the real tragedy is when men are afraid of the light." (Attributed to Plato, 428-345 B.C.) ********************
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