77. Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.
Judge Walker cites to some 18 articles in support of this "finding." The articles, as one might expect, are all from pro-gay publications and are written, in whole or in part, as an indictment of religious opposition to LGBT causes.
As other commenters in the blogosphere have noted, this "Finding of Fact" should have little impact on appellate review, because the standard of review is whether there is a "rational basis" for the California Proposition 8 law, i.e., excluding homosexual couples from the definition of who can form a marriage. Nevertheless, I do believe this finding of fact is compelling evidence of the pre-existing bias of Judge Walker in reaching his decision.
The statement,"Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians" is much more a statement of the Judge's perspective than it is a "finding of fact", and any appellate court should see it as such. These sort of statements are much more a chicken-and-egg type of thing; for example, most people who have a religious belief that homosexuality is sinful and forbidden by the Bible would also believe that one who participates in a homosexual lifestyle is harming himself or herself by having a sinful lifestyle.
To ipso facto conclude that religion is responsible for so-called "gay bashing", or threats of violence against gays, is a patent absurdity. In my experience and observation, many more Christians observe the "love the sinner, hate the sin" approach to people who are within the LGBT community, and are very tolerant while at the same time not accepting of the lifestyle as consistent with Christian teachings. On the other hand, many in the LGBT community use the broad brush of "homophobe" or "gay bashing" on anyone who does not 100% accept their lifestyle and their demands on society. So, which is the chicken, and which is the egg?
As Justice Scalia observed in his dissent in Lawrence v. Texas, many of our laws are and always have been based upon traditional, and yes, religious, ideals of morality. For example, we prohibit people under a certain age from marrying, or at minimum require parental consent. Most states prohibit marriage of an incestuous nature. Most states would not countenance inter-species marriages, or marriages with inanimate objects. Most states prohibit sexual relationships with minors, and indeed refer to such relations as "statutory rape" whether or not the relationship is consensual. In some states, adultery is still a criminal offense - it is in some instances referred to as "criminal conversation" (as distinguished from "felonious intent to bore" - just kidding), or "alienation of affections."
So, it is not such a stretch for a public law to be based upon traditional views of morality, most of which have developed in the religious context. In earlier centuries, it was largely the religious community that was responsible for bringing order to chaos, and morality into the public arena. This has not changed, and it should not change simply to suit the secular purpose of a minority that wishes to pursue an aberrant lifestyle. For example, this kind of outcry did not occur when Texas authorities sought last year to intervene in a religious cult's "compound" based upon allegations of marriages and sexual relations with young girls. Likewise, theft, murder, and other acts are prohibited by the Ten Commandments, and this does not prevent these from also being treated as secular crimes.
As I have repeatedly argued in this blog, the First Amendment does not extend to bar religious morality from playing a part in the formation of public laws. Again, the First Amendment prohibits the federal government from making a law "respecting an establishment of religion, or prohibiting the free exercise thereof" This provision was later expanded to state and local governments, through the 14th Amendment. In other words, government cannot specify an official state religion, nor can it prohibit the exercise of a religion. Nowhere in there does the Constituion prohibit notions of morality being relied upon in forming our laws.
Getting back to the point, the role of religion in one's stance on gay marriage has no bearing on the "rational basis" test to be applied to Proposition 8. "Finding of Fact" #77 was unnecessarily included, and is exceptionally revealing of Judge Walker's personal perspective on the issue before him, which, as Justice Scalia said in Lawrence v. Texas, should have been decided neutrally.