On The View, Elisabeth Hasselbeck and Sherri Shepherd both suggested that without Proposition 8, a California ballot measure to amend the state constitution to reverse the California Supreme Court's ruling in favor of same-sex marriage, members of the clergy who refused to perform same-sex marriage ceremonies could have been prosecuted. In fact, as the court itself made clear, the ruling applied only to state officials, and "no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs."
During the November 7 edition of ABC's The View, while discussing the passage of Proposition 8, the California ballot initiative amending the state constitution to ban same-sex marriage and effectively overturning the California Supreme Court's May 15 ruling that affirmed the constitutional right of same-sex couples to marry, co-host Elisabeth Hasselbeck asserted that a "priest" in Sweden was "put in jail for not wanting to perform a marriage to a gay couple, so then they put him in jail because the law stated that you could not discriminate based on sexual preference." Later in the discussion, co-host Sherri Shepherd said: "I don't want to know that my pastor -- because, you know, the church is preaching against homosexuality, and I don't want to know that my pastor could be jailed." However, contrary to Hasselbeck and Shepherd's suggestion that as a result of the California Supreme Court's ruling -- or without the passage of Proposition 8 -- members of the clergy "could be jailed" for refusing to perform gay marriages, neither the decision by the California Supreme Court, nor Proposition 8 had anything to do with members of the clergy.
The California Supreme Court's ruling applied only to state officials. The ruling directed "state officials  [to] take all necessary and appropriate steps so that local officials may begin issuing marriage licenses to same-sex couples" [emphasis added]. The court itself noted the irrelevance of its decision to clergy, saying in the majority opinion that "no religion will be required to change its 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."
Additionally, contrary to Hasselbeck's assertion that a Swedish priest was jailed "for not wanting to perform a marriage to a gay couple," Swedish Pastor Ake Green reportedly was convicted in 2004 under Sweden's hate crimes law for making incendiary statements about gays and lesbians, including calling them "a deep cancer tumor on all of society." In November 2005, his conviction was overturned by Sweden's highest court, which reportedly said his sermon "was protected by freedom of speech and religion."
From the November 7 edition of ABC's The View:
WHOOPI GOLDBERG (co-host): I don't know if you all are aware of this, but a record number of minority voters turned out for the election, and apparently it helped socially conservative victories on issues like gay marriage. In California, they've -- there is now a ban on gay marriage, and they're trying to revoke the rights that were initially given to folks who are gay married couples who are trying to take the rights away --
BARBARA WALTERS (co-host): By the state Supreme Court.
GOLDBERG: By the state Supreme Court -- said yes, that was OK, it was fine.
WALTERS: The state Supreme Court voted that gay marriage was legal. Our friend Ellen DeGeneres, for example, got married, and it was extremely important to her and her partner, of course, and now Proposition 8 proclaims that -- puts a ban on gay marriage. And one of the reasons we were talking about it earlier was that some church groups opposed it because they said if a church group said, "We will not do a gay marriage, OK?" They could be sued and they could lose their tax-exempt status if they -- if their religion or whatever it is precludes their doing -- having gay marriage. And that also it would mean that gay marriage could be taught in schools, if they wanted to.
GOLDBERG: I don't understand that.
WALTERS: Which don't you understand?
GOLDBERG: How would it be taught in schools? I mean, marriage isn't taught in schools, so why would gay marriage be taught in schools?
WALTERS: Well, in the same way sex education is taught in some -- or discussed. I don't know that it -- this is -- I'm telling you their fears, not my fear -- that it could be, that if somebody brought it up, it's something that could be discussed or something that could be in the curriculum. Who knows? But the bigger issue seems to have been the churches. Certain churches.
HASSELBECK: It was said with precedent, I think, in Sweden there was a church, a priest who was then jailed, and I think since then released. But he was put in jail for not wanting to perform a marriage to a gay couple, so then they put him in jail because the law stated that you could not discriminate based on sexual preference, I believe. But this is -- I guess 5 million people voted and wanted to protect the definition of marriage as it had been stated, and I think that people felt a victory in California because it was -- it came from the people, that these people came out and voted. It wasn't set by judges, so I think that's where they were coming from.
SHEPHERD: This is also -- this is also -- you know, you said that they -- this is also the second time this has been up for a vote. The first time, the people said, "No, we don't want gay marriage."
WALTERS: And then it went to the court.
SHEPHERD: Then they overturned it and the people voted against, so this is the second time.
WALTERS: You know, I didn't know that a proposition, that is an amendment to the state constitution, superseded the state Supreme Court.
GOLDBERG: Neither did I.
WALTERS: You know, I thought the Supreme Court was the final word, but evidently, the finally word is the amendment.
HASSELBECK: But their argument there I guess was -- are you to legislate from the bench. It kind of goes back to that argument, and that the actual amendment should come -- if they're going to do anything to the constitution, it should come from the people, as it is for the people.
GOLDBERG: Well, the people should also be given all the information, and not frightened into things. Now, I think if kids who are the product of a gay couple are asked about it in school, they should be able to explain it, and that's shouldn't be afraid -- that shouldn't be something that frightens people. I always say, look, if you think gay marriage is wrong, don't marry a gay person. You know what I mean? But wait, wait -- because pretty much -- and I've been around a lot of gay people most of my life, and gay people do not -- and there are always boneheads everywhere, let's get that -- there are straight boneheads, and gay boneheads, and boneheads everywhere. But I believe most gay people who want to go get married do not want to go someplace that doesn't want them to -- they don't --
WALTERS: They won't go to the church.
GOLDBERG: -- they wouldn't go to the churches. That's why we do it in the backyards -- not we, like I'm gay -- but I have been at so many gay marriages -- you know you always talk about being the bridesmaid? I'm the bride's thing, whatever. You know?
HASSELBECK: It's interesting that the actual majority of the votes -- I mean, I guess it was at the urban minority communities voted overwhelmingly for this proposition.
GOLDBERG: Yes. They were told in the churches that people would be teaching it in the schools if they allowed it. I'm just telling you what, what --
SHEPHERD: But also -- excuse me, also not only that, but you know, I don't want to know that my pastor -- because, you know, the church is preaching against homosexuality, and I don't want to know that my pastor could be jailed, sent to jail because he's preaching something that's --
WALTERS: But you know, that is so --
WALTERS: Supposedly, if a preacher -- under -- if the ban did not pass, and a preacher preached against homosexuality, which you say happens in churches that you've been to, he could be, quote, jailed, because he is preaching --
SHEPHERD: I don't know what the quote is around jailed. Jailed is jailed.
WALTERS: Well, because he could be jailed. But I mean, I think that's really rather farfetched that they're going to come --
SHEPHERD: No, it's not farfetched at all.
WALTERS: Well, that's why the ban --
SHEPHERD: Somebody was jailed.
WALTERS: You would have voted for the ban?
SHEPHERD: It's something that I struggle with because, you know, I have my friends who are gay, my uncle Tommy, uncle Jimmy, as Jeffrey likes to call them. And it's something that I struggle with because I don't want rights taken away from people, you know, being able to care for their partners and, you know, rights that they have. And then also, too, I am a Christian and I believe that marriage is between a man and a woman. So it is a struggle that I have.
WALTERS: But you see, my point is, and again -- you know, I'm sort of saying a little bit of what Whoopi said -- the idea that a preacher who preached against homosexuality, that the law enforcement, that the -- I don't know, the local sheriff would come in and say, "You're against the law, we're going to jail you." Now, is it possible? Yes.
GOLDBERG: Anything is possible.
HASSELBECK: We're a litigious society. I mean, I think there are lawsuits that get brought up all the time, and I don't think anyone would hesitate to bring a lawsuit --
GOLDBERG: Yeah, I do, I do. Because this was so important to folks because it's not just about being gay, and it's not just about partnership. If the state and the country were to allow gay partners the same rights as married people have, this wouldn't be an issue. But the issue -- but the issue is --
HASSELBECK: But would you want -- if that were the case, would you then be OK with it not being called marriage?
GOLDBERG: I would -- I'm not gay, so I don't know, but I can only speak for what I see. As we said a couple of days ago, if I -- if Sherry and I were married, and we have built our life together, and I die, you, my cousin, could come in and say, "I'm taking everything that you guys [inaudible]." That's the law, because --
HASSELBECK: But you do have rights as a -- difference state to state is the problem.
GOLDBERG: Civil unions do not allow me to die and you to automatically get my stuff.
WALTERS: It could also affect children.
GOLDBERG: It can affect -- also, if we've adopted children, they can come, you can come, and grab that child. If we can find, if the states can say this is what civil union is, it is everything but the word, people I think would be more happy.
WALTERS: Another proposition -- another proposition that I believe, and I could be wrong, I have to check the information, but one of the states prohibited gay people from adopting children. We talked about that.
GOLDBERG: Which drives me crazy, yeah.
WALTERS: Was it Nebraska? I don't want to say it, I don't think so. Somebody look it up and -- somebody look it up and whisper in my ear. Where is it? Not Oregon. No.
GOLDBERG: No, Florida has always had that law.
WALTERS: We'll find out and tell you. But the idea that there are children who could be adopted who might not be adopted, I mean, that -- I mean, the gay marriage, I can see, really --
GOLDBERG: We'll find out in the commercial break.