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The Controversy Over the Tactics that Can Be Used to Protest California's Anti-Gay-Marriage Proposition 8: What's Right, and Wrong, About a Recent High-Profile Ad By Religious Leaders


Thursday, Dec. 11, 2008

On Friday, December 5, the New York Times ran a fascinating ad entitled "No Mob Veto." The ad was sponsored primarily by the Becket Fund, but was signed by 13 individuals including Nathan Diament of the Union of Orthodox Jewish Congregations of America, William Donohue of the Catholic League, and Rich Cizik of the National Association of Evangelicals.

The purpose of the ad was to decry the violent tactics some protesters have used against religious organizations, and especially the Church of Jesus Christ of Latter-day Saints, in response to the passage of Proposition 8 in California. (As readers may know, Proposition 8 is a state initiative that amended the state constitution to permit marriage only between a man and a woman after the California Supreme Court had held that the California Constitution guarantees equal marriage to straight and gay couples alike.)

Gay activists from all over the country have been very vocal in their response to the passage of Proposition 8, as is their constitutional right. Unfortunately, however, some of the more radical among the protesters have crossed the line by entering churches to disrupt services and painting graffiti on churches, among other illegal acts. The No Mob Veto group is right to publicly castigate these fringe extremists, for reasons I will set forth here.

The Lessons of the Violent Fringe of the Anti-Abortion Movement

History has important lessons for this current, heated social conflict. Since the anti-abortion movement gained momentum in the 1960s, it has had both its more sedate elements and its dangerous crackpots. The respectable protesters became politically active, public-relations savvy, and adept at fundraising. Many, if not all, of those signing the No Mob Veto have been active participants in these aspects of the anti-abortion political movement.

At the same time, however, some marginal individuals opposing abortion have visited deadly violence on abortion doctors and clinics, whether through shotguns, terrorist threats, or arson. Just last December, an abortion clinic in Albequerque was set afire by an arsonist. The anti-Proposition 8 movement has not yet reached that level of violence, and it is wise of the No Mob Veto signatories to raise their voices to stop it before it ever does.

It was not just physical violence the anti-abortionists visited on those attempting to obtain the medical procedure, but also harassment. Laws were needed to keep the discourse between the two sides, if not civil, at least non-violent.

In 1994, Congress passed the Freedom of Access to Clinic Entrances Act (FACE), which has two prongs. First, it prohibits the use of intimidation or physical force to prevent or discourage persons from gaining access to reproductive health care facilities. Second, it prohibits the use of intimidation or physical force to prevent or discourage persons from exercising freedom to worship at a religious facility. The law also penalizes the act of damaging a reproductive health care facility or place of religious worship. It works by creating a buffer zone around abortion clinics so that their work can go on while, outside the buffer zone, their opponents can still exercise their rights to protest. Anti-abortion violence accelerated following the passage of FACE, but over time, as the statute was upheld in the courts and enforced, it became a formula for creating some order between the two sides.

FACE would seem to apply here as well. The anti-Prop. 8 agitators should not be permitted to prevent worship or to damage religious facilities. They have every right, though, to peaceful protests. A buffer zone concept makes a great deal of sense in this context, too, as it is likely the opponents to Prop. 8 are not going away anytime soon. Any religious group that decides to enter the political fray as the Mormons did in California with Proposition 8 should expect public criticism, heated speeches in opposition, and persistent protesters.

Where the "No Mob Veto" Ad Goes Too Far: Moving from Illegal Action to Constitutionally-Protected Speech

The No Mob Veto petition could have gone farther in praising the peaceful opposition to Prop. 8. Some of the signatories, after all, have themselves been part of the civilized opposition to abortion, and they must know firsthand how difficult it is to corral heated emotions and beliefs onto non-destructive paths. Wise leadership in both universes requires patience, and no tolerance of illegal conduct – but also tolerance of peaceful, non-disruptive protest.

Unfortunately, however, the end of the No Mob Veto ad veers off from its original intended purpose: to castigate the use of violence in public debates. The ad goes on, in addition, to issue the following warning against those who are engaging in speech alone:

Furthermore, beginning today, we commit ourselves to exposing and publicly shaming anyone who resorts to the rhetoric of anti-religious bigotry – against any faith, on any side of any cause, for any reason.

Just when the ad's signatories had made the important distinction between public debate and physical violence, they then threaten those who engage in voicing words they do not like? This is truly an unfortunate choice of phrasing in this context: Why use the words "exposing" and "publicly shaming"? Are they threatening to "out" any gay person who is in the closet? That would not be an illogical conclusion for a reader to make, given the context of the debate and the ad's choice of words. And what exactly is "anti-religious bigotry" in their view? There are those on the list who treat any criticism of religious entities as taboo, so this phrase may cover all sorts of perfectly appropriate criticisms of religious entities.

Moreover, this last line falsifies the tone of moderation in the earlier part of the petition by saying that the signatories will expose and publicly shame individuals who engage in "anti-religious bigotry," however they define it, "for any reason." Let's get real here: There are religiously-motivated individuals and groups who deserve strongly worded public criticism, because they engage in, or remain silent in the face of, child sex abuse, financial improprieties, or the whole host of human infractions. If what the No Mob Veto folks are saying is that they will go after anyone exposing those facts because they happen to involve religious entities, then they are dedicating themselves to darkness, rather than light.

Finally, if this group would like to contribute to a more civil exchange of views in the public square involving religion, there is work for them there as well. It would be so refreshing to have these same signatories pledge to stop playing the religious discrimination card anytime they fail to obtain what they seek in the public sphere. When the megachurch, megasynagogue, or megatemple seeks to squeeze itself in between residential homeowners or displace prized open space, and the homeowners and citizens object, then the religious representatives typically start calling everyone in the process, including the homeowners, anti-religious bigots. Guess what – it does not take a bigot to love the residential character of the neighborhood where one's family lives.

Civility and justice demand an end to violence on Prop. 8, a willingness by religious groups to accept the consequences of taking aggressive political action, and a dedication by all to the truth.

Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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