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(Editor’s note: This is Part II of a two-part RGOD2 column on straight ally Eric Isaacson, who is behind some of the "friend of the court" briefs opposing California's Proposition 8. Isaacson will will be honored Feb. 14 for his work to "Legalize Love for Everyone." For more details on the Valentine’s Dinner honoring Eric and the Rev. Mike Scheunemeyer at Heat Bar and Kitchen in North Park, please reserve your table or seat HERE.)
Eric Isaacson is a member of the First Unitarian Universalist Congregation in San Diego and has done more than any attorney I know to bring religious and secular organizations together on marriage equality. He has written extensive amicus curiae (friend of the court) briefs that have been filed since 2004 to argue the case for marriage equality “from a religious perspective” and using a wider interpretation of the law and constitution.
The straight ally’s work has provided a remarkable checkmate to the Religious Right’s arguments that tradition and faith are not only on their side but exclude any support for same gender marriage. Isaacson has given several illustrations during his two-part interview with me where some of America’s most historic churches and faith communities want to solemnize same gender marriages but are prevented to do so by anti-gay attitudes and misinformation from other religious movements in this country.
Despite these challenges, Isaacson is hopeful that by June of this year, the U.S. Supreme Court will rule on equal access to the right to marry for same gender couples and DOMA will be repealed. His personal contribution as a straight ally to this long journey to equality will be celebrated on Valentine’s Day as Heat Bar and Kitchen hosts “Legalize Love for Everyone” fundraiser for the St. Paul’s Foundation for International Reconciliation.
Albert Ogle: What if the Supreme Court’s decision in March does not go in the direction of same gender marriage. What then?
Eric Isaacson: I am confident the Supreme Court will interpret the Constitution’s “Equal protection under the law” to include same gender couples right to marry. Historically, we had a very important decision on interracial marriages in 1948 when the California Supreme Court ruled that the miscegenation laws (that were on the books of 40 states at the time) were unconstitutional. This was 19 years before the U.S. Supreme Court struck down all of these laws.
The California case, Perez v. Lippold (commonly referred to as Perez v. Sharp), involved a Mexican-American woman and a black man, Andrea Perez and Sylvester Davis. On their marriage license application, Perez listed her race as “white,” and Davis identified himself as “Negro.” The Los Angeles County Clerk’s Office turned down the application, citing a section of the California Civil Code dating from 1850: “… No license may be issued authorizing the marriage of a white person with a Negro, mulatto, Mongolian or member of the Malay race.”
After being turned away, Perez petitioned the California Supreme Court for a writ of mandamus to compel the county clerk to issue a marriage license. Most people do not know that the couple were two devout Roman Catholics. Their high-powered attorney was also a Roman Catholic highly motivated by social justice theology at the time.
Writing for the 4-3 majority, Associate Justice Traynor boldly asserted that marriage was a fundamental right that could not be denied on the basis of race alone. “A member of any of these races may find himself barred from marrying the person of his choice, and that person to him may be irreplaceable,” he wrote. “Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains.”
He also noted that the primary reason why this couple should have the right to marry was based on religious liberty. As people of faith they had the right to marry –the anti-racial marriage laws impaired their religious liberty. Justice Edmonds concurring opinion who made the majority opinion also believed “this is a religious liberty issue.”
Perris v Sharp had a deep religious liberty’s argument – the right to marry within their faith community! The only agreement on the Supreme Court decision was that this was a religious liberty issue and their decision ultimately allowed interracial Catholics to marry.
What was even more astounding about this decision in 1948 was the argument that the couple had the right to marry from a religious perspective. So in 1948, the Catholic Archdiocese of Los Angeles was leading the battle on the right to marry for interracial couples and by the end of that century would be denying the right of Universalist Unitarians, Episcopalians, United Church of Christ, Metropolitan Community Churches and Reformed Judaism to share the sacrament of marriage with their LGBT members. What happened here! Many of the members of the California Council of Churches do not have same gender rites in their liturgies but still believe in the autonomy of each denomination to have the right to marry whomever they please. Someone who is divorced in California also has the right to marry, even though some churches do not believe in divorce. So even devout Catholics like Newt Gingrich (who incidentally found his faith through an adulterous relationship with his latest wife,Calista) have nothing to fear from same gender marriages.
In 2008, we made this argument. The religious liberty argument has not been uses as a central argument in these recent cases. It would be best advanced in a California State Court bound by the Supreme Courts construction of the 1948 arguments. I have had conversations about it and would be willing to advance this position more strategically. If the U.S. Supreme Court would address the religious liberty arguments, we have Perris v Sharp as a possible resource. The religious arguments from conservative Christians against same gender marriages have been addressed in a variety of our briefs to such an extent that this is not a central argument in the cases before the courts. The Supreme Court also has the option of taking up the issue of religious freedom of it wants to, given we have documented the arguments in our briefs”.
Albert Ogle: As a straight ally, why do you think same gender marriage has become such a “line in the sand” issue for some faith communities?
Eric Isaacson: There is obviously prejudice against gay people. There is also the fear factor. Look at the tragic story of pastor Ted Haggard, who was president of the National Association of Evangelicals while he was fighting marriage equality in California by speaking publicly, filing briefs and funding these anti-gay campaigns, was actually having sex with a gay male prostitute and he was also using drugs! For some of these religious leaders the issue is painfully close to home and the only way for these individuals to deal with homosexuality it is to mount these irrational and highly public campaigns that detract from their own personal sexual conflicts and problems.
Institutions can have the same problem. There is absolutely no reason by the Roman Catholic Church should feel their religious freedom or authority is threatened by the state allowing same gender marriages. Clergy are not forced to marry couples against the will or teachings of a particular denomination, so there is no evidence that allowing same gender marriages will undermine the teaching of the church. Now the Roman Catholic Church is trying to stop my clergy and denomination from marrying same gender couples and we have never had this before now. It makes no sense.
So you have irrational responses from high profile religious leaders like Haggard or the Roman Catholic Church but you also have other large organizational responses that often take positions that are not consistent with their values. Take the Boy Scouts of America.
This organization has been consistently opposed to openly gay people within their own organization and spoken out against any form of discrimination against LGBT people. Douglas Sovereign Smith Jr. worked tirelessly to show how important it was that homosexuals were not allowed into the Boy Scouts and youth need to be protected from predators. As a top executive, Smith also issues many statements against LGBT equality and in 2005 was charged with trafficking in child pornography. He was not only protected by the leadership of Boy Scouts of America but they gave this guy a full pension! So here you have an organization that protects and supports criminals who are charged with trafficking in child pornography while chasing out anyone gay who has the courage to come out as a Scout-expel them, or to objecting to discrimination. What is going on with this organization?”
Albert Ogle: Pastor Scott Lively recently appeared in court in Massachusetts charged with crimes against humanity by Sexual Minorities Uganda. What can American courts do about the exportation of homophobia through the kinds of propaganda campaigns illustrated by this case?
Eric Isaacson: “One of the first laws created by George Washington was the First Judiciary Bill (the Alien Tort Statute) saying American courts would have jurisdiction over claims by aliens in violation of The Laws of Nations” (a tort is simply a wrong), which allowed foreign aliens to use the courts of the newly established Republic to find justice for grievances that may have occurred outside the jurisdiction of the U.S.
The law has not been used much over 200 years but it has long been recognized been used against piracy on the high seas and also used to fight the slave trade and in more recently in the 1970s used against basic human rights violations abroad. So there is legal precedent for Sexual Minorities Uganda to bring charges against an American pastor in the American courts for his role in meeting with Ugandan lawmakers to raise levels of homophobia and punishment for the LGBT community.
There is an important case before the U.S. Supreme Court where some Nigerian nationals living in the U.S. are bringing charges against Shell Oil for their role in the 1995 execution of a local rights activist, Barinem Kiobel and the systemic persecution of his ethnic minority. Shell Oil is basically supporting what the Nigerian government did to set up false charges against Kiobel. (The Kiobel v Shell story can be read .)
There is a lot of attention on this case because if the Court rules against the charges, then the Lively case will go nowhere. Extraterritorial wrongs and how our courts deal with them are now clearly open for interpretation.
One of four applications of this law has historically been about piracy on the high seas-it strikes me as ridiculous to see corporations (who are sometimes engaged in violations of human rights –a kind of piracy!) are not brought to account in US Courts. This larger case will assert the right of foreign nationals to seek legal recourse through our courts and interpret the First Judiciary Bill/Alien Torte Act for our time. I would also be interested in filing an amicus curiae brief to support the claims of Sexual Minorities Uganda given Lively is citing his religious liberty as a reason to allow him to deliberately misinform Uganda members of parliament about LGBT people.
Albert Ogle: What have we learned since 2004 when you began doing this important legal advocacy work?
Eric Isaacson: I am amazed at the incredible shift in public opinion in such a short time. “Don’t Ask, Don’t Tell” is finally gone. Marriage equality is a reality in New England, Washington, Maryland, Minnesota and Iowa. By June, I am confident DOMA will be history and the Supreme Court will have made its historic decision that LGBT people deserve “Equal protection under the law” and marriage equality will become normalized. What an incredible change we have witnessed as the journey of the Perry v Schwarzenegger case moves through the judicial process. It has been a great honor to be part of this historic change as we seek to legalize love for everyone”.
RGOD2, written by the Rev. Canon Albert Ogle of St. Paul’s Cathedral in San Diego, looks at faith and religion from an LGBT point of view. Ogle is known around the world for his work in support of LGBT rights and HIV-prevention efforts. He is president of St. Paul’s Foundation for International Reconciliation. Donations to the foundation can be made by clicking HERE.