In the past several years, fundamentalist Christian and "family" organizations have proposed anti-gay-rights initiatives on state and local ballots that would invalidate laws outlawing discrimination based on sexual orientation and would prohibit state legislatures or city councils from passing such laws in the future. This Note argues that these initiatives violate the Establishment Clause of the First Amendment because they have the impermissible purpose and effect of endorsing a religious viewpoint.
The author argues that the Supreme Court's Establishment Clause jurisprudence allows an inquiry into impermissible religious motivations for a law, even when its defenders profess a legitimate secular purpose. The author argues that the intent of the sponsors of such initiatives is the best measure of their purpose. Initiatives placed on the ballot in Oregon, Colorado, and elswhere primarily have sought to gain public endorsement of the belief system of fundamentalist Christianity; their supporters have not credibly articulated a legitimate secular purpose. The author then demonstrates that the objective effect of the initiatives is to endorse the same religious viewpoint. The author concludes that the invalidation of these initiatives because of their religious basis would strike at an important pillar of sexual orientation discrimination by focusing public attention on the motivations of opponents of lesbian, gay, and bisexual equal rights.
Marc L. Rubinstein,
Gay Rights and Religion: A Doctrinal Approach to the Argument that Anti-Gay-Rights Initiatives Violate the Establishment Clause,
46 Hastings L.J. 1585
Available at: https://repository.uchastings.edu/hastings_law_journal/vol46/iss5/5