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Assessing the legal claims in the campaign for California's Prop 8:

There certainly seems to have been a recent reversal of fortunes in the ballot fight over California's Proposition 8, which would eliminate marriage for gay couples in the state if voters approve it on November 4. Supporters of Prop 8 are now more than $10 million ahead in fundraising. And where polling through September showed Prop 8 losing by as much as 14%, it now shows Prop 8 ahead by 47% to 43%. Even this probably understates the true support for Prop 8 since past experience shows that polls are about 5-10% off in measuring support for gay-marriage bans.

What happened? Credit is being given to the TV ads running in support of Prop 8. The first of these ads, and the one containing the most substantive legal claims so far, is this one:

Rather than attacking gay marriage itself, the ad focuses on the asserted collateral effects of allowing gay couples to marry. It's not that gay marriage itself is so bad, or is some sort of threat to the institution of marriage, it's what it might lead to that's terrible. To support such fears, the ad relies on a law professor, Richard Peterson of Pepperdine, who lends an air of legitimacy to the claims. It is his assertions, and the legal basis for them, that I want to examine here.

"People sued over personal beliefs"

The notion that people will be sued simply for believing — or even for publicly saying — that SSM is wrong is completely unfounded. There is no statutory basis for such a suit at either the state or federal level. If there were, it would be plainly unconstitutional under the First Amendment.

The ad implies a somewhat different fear: that people who act of their "personal beliefs" opposing gay marriage will face lawsuits. The only support for this softer version of the claim given in the ad is a recent decision from the California Supreme Court, North Coast Women's Care Medical Group Inc. v. San Diego Superior Court, which held that state-licensed doctors may not refuse treatment based on their religious objections to providing that treatment (in this particular case, to a lesbian seeking assisted reproduction). Whatever one thinks of the result in the case, or of the state statutory policy and constitutional principles underlying it, it had nothing to do with gay marriage. It was based on California's Unruh Civil Rights Act, which prohibits discrimination in public accommodations and services on the basis of sexual orientation. That law long predates gay marriage and will survive after November 4 no matter the outcome of the Prop 8 fight. Whether gay couples can marry, the only issue on the ballot, has nothing to do with whether people may be sued for their personal beliefs, or whether they may be sued for acting on them in the provision of services to the public.

We have now had gay marriage in Massachusetts for more than four years. There are no cases in which people have been hauled into court solely for their personal opposition to it.

"Churches could lose their tax exemption"

There is no basis for believing that gay marriage will cause churches to lose their tax exemptions. Recall that in exchange for agreeing not to be directly involved in elections, and agreeing not to endorse candidates for public office, churches are exempt from state and federal property and income taxes. Donations to churches are also tax deductible. If churches want to engage in direct electioneering, they are free to do so — but they must give up these huge tax advantages.

But what does gay marriage have to do with any of this? The ad cites only an article by Robert Dekoven in the Gay & Lesbian Times. DeKoven, a law professor at California Western, warned that if religious denominations became too heavily involved in the campaign for Prop 8 (and in another proposition battle in California dealing with abortion) they might lose their "public subsidy" on the ground that they are using it for political rather than religious and charitable purposes. I'm not sure whether Dekoven is right about that as a matter of tax law. But I am sure that the issue will be resolved — if it is even investigated by state or federal tax authorities — by reference to long-standing policies and practices regarding religious institutions' involvement in political campaigns regardless of the underlying substantive issues involved in those campaigns. In short, the continuing tax-exempt status of churches involved heavily in ballot fights will be decided independently of whether gay couples can marry, and independently of whether Prop 8 passes or fails.

Again, after four years of experience in Massachusetts, no church has lost its tax exemption because of gay marriage.

"Gay marriage taught in public schools"

Of the three charges made by Professor Peterson in the ad, this is the most explosive and the most resonant with the history of anti-gay discourse. The mix of children and homosexuality is politically toxic, drawing on very widespread parental anxieties. The unstated fear is two-fold: that children will be recruited or lured ("taught") into homosexuality and that homosexuality is itself bad/immoral/unhealthy.

Leaving discussion of those fears for another day, is there anything to the idea that California's schools will have to "teach" gay marriage if Prop 8 fails? The ad relies on a provision of the California Education Code, §51933, which it quotes as mandating that "Instruction and materials shall teach respect for marriage." Presuming that teaching respect for marriage will mean teaching respect for all legal marriages, including same-sex ones, we have then the teaching of gay marriage to all of California's schoolchildren, presumably against the wishes of many parents.

But there are numerous problems with this conclusion. No school district in California is required to teach anything about marriage to any child. The requirement, along with other provisions that mandate an emphasis on abstinence and consultation with parents about sexual matters, comes into play only if the school district chooses to have age-appropriate instruction on "sexual health education." The ad doesn't mention that the provision also mandates the teaching of respect for "all committed relationships" in addition to marriage, which presumably includes respect for committed same-sex relationships. Thus, regardless of the outcome of Prop 8, schoolchildren may already be instructed on the worth of gay families under existing policy. Even if the school district elects to to teach sex ed, the requirement to teach "respect for marriage" is vague and spacious. A school district or teacher could simply inform students that marriage is good and valuable and leave it at that, without mentioning what sorts of couples can marry or how their right to marry came about. That hardly constitutes a state requirement to "teach gay marriage" in the schools.

That's not all. Even if a school district in California elected to teach schoolchildren that gay couples can marry, a fact they are likely to have learned anyway from living in the state, parents are entitled to have notice that sex ed instruction will occur and are entitled to withdraw their children from such classes. Cal. Educ. Code §51937-51939. Under §51938, "A parent or guardian of a pupil has the right to excuse their child from all or part of comprehensive sexual health education, HIV/AIDS prevention education, and assessments related to that education . . . ." This serves the legislative view that "parents and guardians have the ultimate responsibility for imparting values regarding human sexuality to their children." Cal. Educ. Code §51937.

Furthermore, private religious schools are completely exempt from the general state eduction requirement that schools not discriminate on the basis of sexual orientation. Cal. Educ. Code §220.5.

In short, whether or not gay marriage continues, and whether or not Prop 8 passes, individual school districts and parents will retain ultimate control over whether and what children are taught about gay relationships and marriages. If they fail to exercise that authority in conformity with their beliefs, that failure can hardly be blamed on gay couples who want to be married.

It's true, as alleged in a second ad produced by supporters of Prop 8, that schoolchildren in Massachusetts have been informed that gay couples are permitted to marry. The second ad, also narrated by Professor Peterson, cites a First Circuit case rejecting parents' First Amendment and substantive due process claims to an exemption from classroom instruction. Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008). That may or may not be right as a matter of federal constitutional law, but the underlying issue is the narrow exemption provided in Massachusetts law relating to parental notice and exemption from classroom instruction on sex education. In contrast to California, Massachusetts does not provide as much local school district control and does not include the same exemptions for discussion of marriage.

So, unlike in Massachusetts, whether California's little princesses are taught in schools that they have a right to marry other little princesses (a specter tenderly raised in the second Prop 8 ad) depends in the final analysis on whether that's what their individual school districts and parents permit them to be taught. In some school districts, say San Francisco, parents probably won't mind such instruction. In others, say Bakersfield, they will. Pluralism, not gay-marriage propaganda, will reign if that's what parents demand.

The ads supporting Prop 8 have apparently been effective at persuading some Californians who might not otherwise object to same-sex marriage that their religious liberty and the upbringing of their children are in danger. The exploitation of these fears in the Prop 8 ads continues a pattern in which SSM opponents falsely assert that "gay marriage" has caused some erosion of religious and personal liberty based on legal claims that have little or nothing to do with gay marriage. I discussed a number of such false assertions in a post back in June. As with the similar claims made back then, the ones generating fear in the Prop 8 campaign now are at the very least unfounded or misleading, and at worst, they are outright false.

J. Aldridge:
Prop. 8 if passed will probably end up in court and overturned under some new made-up constitutional fictional right.
10.10.2008 1:32pm
Randy R. (mail):
I would like to note that the Connecticut Supreme Court just ruled in granting marriage rights to gays. Hurray!

The legislature had previously approved civil unions, and there is strong support as well for marriage.
10.10.2008 1:33pm
HH:
J. Aldridge - One can only hope.
10.10.2008 1:34pm
Randy R. (mail):
"Prop. 8 if passed will probably end up in court and overturned under some new made-up constitutional fictional right."

Let's hope so.

It's interesting that California seems to act as though there is no gay marriage anywhere in the states. Do the residents not know that Massachusetts has had SSM for several years now? And that none of the parade of horribles has come to pass? And that support for SSM among the populace is at a clear majority?

Fear -- it's the only thing these conservatives have left to offer to Americans.
10.10.2008 1:36pm
wm13:
Prof. Carpenter ignores the New Mexico and Canadian cases where people have indeed been punished for refusing to assist in gay marriages. It isn't much of a stretch to imagine the same sanctions being imposed on ministers who refuse to officiate at such marriages.

I presume Prof. Carpenter will delete my comment, as he usually does when I say something critical.

DC: I do not delete "critical" comments. I delete comments in rare cases that violate the VC's posting policy (see below) or that are very far afield from the post.

As for the substance of your comment, I'm not sure which cases you're referring to. In every case I've seen where some claim is made that "gay marriage" "caused" an erosion of personal or religious liberty, it turns out that some pre-existing non-discrimination policy is at issue -- not gay marriage. The New Mexico case of the photographer admonished by the state civil rights commission because she would not photograph a lesbian commitment ceremony comes out of a general civil rights statute, not gay marriage, which is not even legal in New Mexico. As for Canada, I'd have to know which case you'ree referring to, but keep in mind that Canada does not have the same free speech and religious freedom protections that are enjoyed in the United States. For more on the abuse of these examples to frighten people about the collateral consequences of SSM, see my June post on this topic generally, in the link provided above.
10.10.2008 1:37pm
wekt:
Why does the gov't even need to decide what marriage is? Different people obviously have strongly-held opinions of whether same-sex unions should be considered marriage, and this question is best left to the marketplace of ideas rather than decided by gov't fiat.

What the legislators should do is replace every instance in the statute books of the word "marriage" with "civil union". Then homosexual couples can be given the exact same legal protections as heterosexual couples, without getting stuck in the quagmire of trying to impose certain conceptions of what marriage is.
10.10.2008 1:55pm
Norman Bates (mail):
This ad was created by the same bigoted zealots who opined that Laurence v Texas would lead to legalized homosexual marriage. What person in his/her right mind would believe such discredited slippery slope arguments.
10.10.2008 1:55pm
Roger Schlafly (www):
Gay marriage is already being taught in my local California public school. When parents complained, the principal claimed that the law requires her to maintain a pro-homosexuality poster in the school hallway. The poster stayed.

I expect that people will be sued over their personal beliefs also. If courts can force same-sex marriage, then they can force other pro-homosexual things.
10.10.2008 1:56pm
scattergood:
Unfortunately the author should broaden the search and include facts like this:

Sued for personal beliefs--A New Mexico photographer was sued and forced to pay $6,637.94 in legal fees because she declined to be hired by a lesbian couple for their commitment ceremony. http://www.telladf.org/UserDocs/ElaneRuling.pdf What could be more plain than this? The photographer didn't preclude the couple from participating in their own ceremony, nor did she stop other photographers from taking the job of producing pictures at the ceremony. She, because of her beliefs, decided not to participate herself and was fined.

Churches could lose their tax exemption--I would ask the author to tell us what would happen if a religious organization refused to conduct a same sex marriage or to facillitate in a same sex couple's adoption? The MA Church issue went away because the Church caved, but what would happen if they didn't? The answer is obvious, the Church would be penalized, fined, and eventually stripped of the religious exemption on its taxes.

Gay marriage taught in public schools
--The author of course makes an obvious logical fallacy. First it is stated that "no schoold is required to teach about marriage" in defense of the fact that gay marriage won't be taught in schools. However, it is clear that IF marriage is taught at all, gay marriage must be taught as valid and equal, which is the point. Second, the author goes on to conclude that if ssm is taught, parents can take their kids out. Well, that isn't what happened in MA. Parents were told that SSM teachings were NOT sex ed. Please see the First Ciruit FEDERAL Court decision on the issue here: http://www.ca1.uscourts.gov/pdf.opinions/07-1528-01A.pdf

So, I'd suggest the author do some reading up on all of the facts, not just the ones that suit the point of his article.

DC: Each of these points is addressed in the original post or in my response to a comment above. Additionally, no church official in any state or foreign country recognizing gay marriage has ever been required to officiate at a gay wedding and no church has been required to recognize a gay marriage. Please take the time to read the post before responding.
10.10.2008 1:59pm
Roger Schlafly (www):
What the legislators should do is replace every instance in the statute books of the word "marriage" with "civil union".
California did do something similar to that. But the gay lobby was not satisfied with that, and convinced a 4-3 Calif Supreme Court majority that the same-sex couples had a constitutional right to call it marriage.
10.10.2008 2:00pm
mga (mail):
I personally favor gay marriage. I also think Prof. Carpenter is substantially overstating his case in suggesting that fear of speech regulations over arguing a contrary position are "completely unfounded" and "plainly unconstitutional." The Supreme Court has upheld restrictions on core political speech based on an appearance of corruption. Numerous courts have effectively imposed speech codes on employers and their employees in the guise of hostile workplace environments. It would not surprise me at all to see that extended to same sex marriage.
10.10.2008 2:00pm
Railroad Gin:
The ad is a slippery slope argument. You can disagree with it, but I don't think its misleading. If homosexuality becomes more accepted, its not farfetched to believe that certain things could logically result.

You're right that there are difference between parental and local control in CA vs. MA. But who's to say these laws can't be changed as well?

If homosexuality becomes more accepted, then more people might see churches as "hate groups" and thus support ending their tax exemption.

If homosexuality becomes more accepted, then its likely that over time more laws would be enacted that would create causes of action to sue businesses that won't provide benefits to a gay spouse for example. Some would see this as suing over beleifs.

Also, suing its not the same thing as winning a lawsuit. Something that would once have been deemed a frivolous lawsuit would have enough merit to get past a 12(b)(6) motion. The likelihood that at least one crackpot judge somewhere would hand down some crazy ruling increases. On appeal the plaintiff would lose but not after the defendant has to mortgage his house to fight the case.

I thought this was a good refutation of some of the points in the ad, but I am tired of this "factcheck" mentality that anyone who disagrees is lying. (E.g. Factcheck vs. the NRA ads). I think Dallas is going to win the Super Bowl. I have good reasons for thinking this. If, come February they do not, does that mean I was lying? If someone disagrees with that prediction and says here why Pittsburgh will win it are they "factchecking" or just giving their own opinion?
10.10.2008 2:14pm
krs:
scattergood has it about right. It's not hard to "refute" soundbite claims made in a 30-second ad, especially if you stack the deck.
10.10.2008 2:14pm
Nathan_M (mail):

Prof. Carpenter ignores the New Mexico and Canadian cases where people have indeed been punished for refusing to assist in gay marriages.

I'm not sure what you're talking about in regards to Canada. Have government employee(s) been disciplined or fired for refusing to do their job and issue marriage licences to homosexual couples?

I have never heard of a case in Canada against a priest or religious group for refusing to assist in gay marriage. Such a case is highly unlikely, because in Reference re Same-Sex Marriage, 2004 SCC 79, the Supreme Court of Canada ruled that the Canadian Charter "protect[s] religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs."
10.10.2008 2:24pm
Patrick Meighan (mail):
Unfortunately the author should broaden the search and include facts like this:

Sued for personal beliefs—A New Mexico photographer was sued and forced to pay $6,637.94 in legal fees because she declined to be hired by a lesbian couple for their commitment ceremony. http://www.telladf.org/UserDocs/ElaneRuling.pdf What could be more plain than this? The photographer didn't preclude the couple from participating in their own ceremony, nor did she stop other photographers from taking the job of producing pictures at the ceremony. She, because of her beliefs, decided not to participate herself and was fined.


Places of business and commercial service providers (like wedding photographers) are often subject to non-discrimination statutes that do not apply to churches and clergy (which have a higher threshhold of 1st Amendment protections). That's why if you run a commercial business that refuses to hire women, you could be sanctioned by your state (depending upon the state in which you live), but if you're the Catholic Church and you refuse to hire women as priests, you'll escape such sanctions and any attempted lawsuits will fail, miserably.

Anyway, as pointed out above, New Mexico doesn't even *have* legal same-sex marriage. If California were to pass Prop 8 and revoke marriage equality, the state's commercial non-discrimination statutes would persist, and wedding photographers will have the exact same non-discrimination liabilities that they do today.

Churches could lose their tax exemption—I would ask the author to tell us what would happen if a religious organization refused to conduct a same sex marriage or to facillitate in a same sex couple's adoption? The MA Church issue went away because the Church caved, but what would happen if they didn't? The answer is obvious, the Church would be penalized, fined, and eventually stripped of the religious exemption on its taxes.

What would happen if a religious organization refused to conduct a same-sex marriage: absolutely nothing. Same-sex marriage has been legal in Massachusetts for about 5 years, and not one church there has been forced to conduct a same-sex marriage. Not one. Zero. Nor has any church in Massachusetts been sanctioned by the state or lost its tax-exempt status for refusing to conduct a same-sex marriage. Again: not one.

Y'know how the Catholic Church in this nation has refused to conduct marriages between American divorcees for, oh, as long as this nation has existed, and suffered no sanction in this nation on account of that, despite the fact that it's perfectly legal for divorcees to marry? Or how the Mormon Church refuses to conduct Temple marriages between non-Mormons, and suffered no sanction on account of that, despite the fact that it's perfectly legal for non-Mormons to marry? Same deal, here. Churches are constitutionally protected within their respective sanctuaries to follow the dictates of their respective faiths.

As to facilitation of a same-sex couple's adoption: that's immaterial to Prop 8. Same-sex couples have adopted children in California for a decade or more... long before same-sex marriage became legal, and they'll continue to do so beyond November 4th, regardless of the results of Prop 8.

Patrick Meighan
Culver City, CA
10.10.2008 2:36pm
Patrick Meighan (mail):
Someone else: "What the legislators should do is replace every instance in the statute books of the word "marriage" with "civil union".

Roger Schlafly: "California did do something similar to that. But the gay lobby was not satisfied with that, and convinced a 4-3 Calif Supreme Court majority that the same-sex couples had a constitutional right to call it marriage."

Not quite correct.

What California did was "something similar to that" for same-sex couples (and any heterosexual couples who desire it), while reserving the separate-but-equal status of Marriage exclusively for heterosexual couples.

What the California Supreme Court (6 out of 7 of whom were appointed by Republicans, and all of whom have been re-confirmed on statewide ballot) ruled was that the State of California had no right to reserve a particular legal status for one group of citizens (heterosexuals) and deny that same legal status to a separate group of citizens (homosexuals).

The California Supreme Court did *not* rule that same-sex couples had a constitutional right to call their unions marriage. It ruled that same-sex couples had a constitutional right to the same union status as is available to homosexual couples. If the State of California were to legally abolish the status of "married" for *every* California couple (homo and hetero), it could legally abolish the status of "married" for same-sex couples and be in full compliance with the California constitution.

Patrick Meighan
Culver City, CA
10.10.2008 2:48pm
David Larsomn (mail):
Dale says:

"in every case I've seen where some claim is made that "gay marriage" "caused" an erosion of personal or religious liberty, it turns out that some pre-existing non-discrimination policy is at issue -- not gay marriage. The New Mexico case of the photographer admonished by the state civil rights commission because she would not photograph a lesbian commitment ceremony comes out of a general civil rights statute, not gay marriage..."


So that makes it better? The fact is that we are well on our way to the creation of a thought-police state, where any resistance to the dominant end-of-the-empire, mortally decadent p.c. party line will be criminalized.
10.10.2008 3:18pm
Helene Edwards (mail):
You are entirely too sanguine about the FA as a bulwark against punishment of public expression deemed gay-unfriendly. The Ninth Circuit has already held, in the Good News case, that gay employees can force removal of flyers advertising a "family friendly" gathering. And then you have the Cal. Supreme Court's Aguilar opinion, holding that ethnic insults are "harassment" and not speech. Clearly, the conversion of "non-tolerant" expression into non-speech is simply a matter of enough gays getting together to whine enough about it. The distinguishing feature of the postmodern judge is her desperation to be considered forward-thinking and "progressive" the next time addresses Queen's Bench or the like. That perception cannot achieved by saying "no" to gays, on anything.
10.10.2008 3:20pm
Tatil:
Let's say a state decided to call only one member of religious group, let's say Mormons or Jews or Muslims "citizens", but to call all others some made-up term such as "full-right residents", which gives them every right available to citizens such as voting, getting passports, standing for elected office etc, except for the term "citizen" due to long standing traditions. Is that acceptable? It sounds discriminatory, but on the other hand does it really matter that much? I don't really have an answer.

By the way, I disagree with calling civil unions "separate, but equal". It is not like the state is forcing them to use the back of the bus, drink from different fountains or use different bathrooms, so I don't think it is "separate".
10.10.2008 3:27pm
Vanceone (mail):
Look, it's clear that the slippery slope argument is valid. We were assured that Lawrence wouldn't bring gay marriage. The SSM supporters lied. Just because for five years no one in Massachuessetts has tried to claim a church is a hate group doesn't mean it won't happen.

Look at the boy scouts. In Philly, they are being booted from their almost hundred year old building they built, just because they happen to be on government property they gifted to the city almost a hundred years ago. They built and maintained their building, but now the PC and Gay Rights police are forcing them out because they "discriminate." Should they then bill the city for all the maintenance they've done?

Look at Canada. They have prosecuted various priests, including Catholic bishops, for just saying they oppose SSM, under their Human Rights Commission. The New Mexico case happened out of a Human Rights Commission as well. If quoting the Bible in Canada is now hate speech, and actual ministers are now subject to injunctions and fines for so doing (even from the pulpit!), when will it come here?

Yes, the First Amendment will save us! It will? With the recent stories of Obama campaign workers threatening prosecution for political speech against him, who is going to bet that we won't see some form of hate speech legislation that criminalizes opposition to SSM on grounds of hate speech?

That's the real thing here. With SSM now perfectly legal, saying opposition to it is hate speech, and must be silenced. By force, if necessary. The spread of so called Human Rights Commissions will see to that.

For you SSM supporters, since it turned out to be false when the claim was made that Lawrence wouldn't bring SSM, how can you guarantee that vocal opposition to SSM will not be labeled hate speech--regardless of religious beliefs? After all, you can't claim a religious exemption to promote racist stuff.... that's "political speech." Or how does my church know that saying marriage should be between males and females won't be classified as political speech, and thus my church is politicking and as a matter of law should lose their exemption?

This is just a process of criminalizing speech against SSM as hate. And you can be dang sure that this will happen here, somehow. Maybe most gay people don't want to do it, but there are plenty out there who want to use the force of law to criminalize anyone who says SSM is immoral as "hate speech."
10.10.2008 3:28pm
Elliot123 (mail):
Prof Carpenter does a service by providing an analysis of the ad in question, and I don't doubt he is correct. In all cases, this is good information.

However, until someone just as skilled as the creators of this ad produces soemthing for the SSM supporters, I doubt SSM can win.
10.10.2008 3:28pm
ba2 (mail):
Prof Carpenter: The legal system is a system. to say changing one part will not affect the rest is inaccurate. Additionally many people's world view is informed by the legal system. Law is the ever present teacher. If you go to ProtectMarriage.com you'll see the incredibly long list of supporting churches. Why? A lot of it is likely institutional self-protection. SSM will put religion and the state on a collision course. Many people probably support SSM partially to weaken organized religion because they see religion as a negative thing. I think many voters in California are starting to understand the ramifications of SSM. It's a choice of two different futures.
10.10.2008 4:03pm
Visiting commenter (mail):
I agree with several commenters: the slippery slope does exist, defenders of equality for gays have long-range plans, and won't stop fighting after attaining any particular achievement, and will be strengthened.

I support full equality, dislike the likely censorship (insofar as it weakens general free speech protections), and don't care about religious exemptions.
10.10.2008 4:09pm
BZ (mail):
Just a note on the church "political" activities question and how clear Supreme Court precedent raises the issue of retaliation against those who oppose SSM:

Churches are exempt from federal taxation under IRC s. 501(c)(3). As such, they cannot engage in electioneering, defined as support or opposition to an individual running for public elective office (including judgeships in some areas). A church, theoretically, can lose its exemption if it engages in electioneering, a question being tested right now across the country.

Support or opposition to a ballot initiative is not electioneering. By regulation, the IRS considers it to be "direct lobbying," that is, an attempt to influence legislation. Jerry Walsh-Skelly, then at the IRS and I, among others, worked on this very question in 1995 when the regulations on the new "mechanical test" in IRC ss 501(h)/4911 were crafted. A church which exceeds the permissible amount of lobbying (under either the "mechanical" or older "substantial part" tests), again theoretically, can lose its exemption.

But these losses virtually never happen. Churches are protected by special "church audit" rules as well as agency traditional caution.

Of more import to the question asked here, however, and applicable to ALL tax-exempt organizations is the "public policy" rule that the IRS rarely enforces, but has in its arsenal. As the Supreme Court has noted in Bob Jones University, 461 U.S. 574 (1983), a tax-exempt organization which violates a "common-law public policy" (in that case, prohibiting interracial marriage and denying admission to those who advocated interracial marriage) will lose its license.

Is it that far from opposing interracial marriage to opposing SSM?

That is why rational legal analysts raise the issue.
10.10.2008 4:12pm
SupremacyClaus (mail) (www):
Here is another problem for gays from marriage privileges. Today, gays make an income a full standard deviation above the mean. Once the marriage privilege gets passed, their employment will fall. As an employer, I know I will get a superior worker if gay. If there is a possibility of breaking the health budget because there is a spouse with AIDS, the employer will start to pass on the gay applicant.
10.10.2008 4:20pm
Happyshooter:
"Outright False"?

I don't think so. Back when the fight was 'Stop raiding our clubs and harassing us in our homes' I went along with them because they had a point.

It wasn't 8 years, up here in Michigan, and they were demanding that they be allowed to have sex in public parks where little kids play ball, and adopt children.

There is no better example of the slippery slope than gay rights.
10.10.2008 4:55pm
Patrick Meighan (mail):
In this thread, the supporters of Prop 8 have retreated, completely, to one single argument, which unfortunately happens to be a logical fallacy: the slippery slope argument.

It appears that Prop 8's supporters are all but acknowledging that each of the supposed consequences of Prop 8's defeat cited in the Yes On 8 ad are, indeed, bogus, and are tacitly admitting that Prop 8's defeat will result in none of said consequences, but that Prop 8's defeat will someday be followed by some future unspecified event or legislation that *will* result in the consequences cited in that Yes On 8 ad. If that's what y'all are reduced to, I'd urge y'all to concentrate on opposing that future piece of onerous legislation (whatever that might be), rather than lying to California voters about what Prop 8 would do so as to codify discrimination into our state's primary secular document.

So, for example, if you wanna pass a California constitutional amendment declaring that no church may lose its tax-exempt status for refusing to conduct a marriage for any reason (including opposition to the intendents' sexual orientation), I'd be happy to join you at the barricades. Personally, I don't happen to think California churches *need* any such amendment (to wit: churches in Massachusetts have gotten along just fine for the past 5 years legally refusing to conduct same-sex marriages), but if it'd help you sleep easier at night, fine, I'm on board. We can pass a constitutional amendment against the boogeyman, while we're at it.

Patrick Meighan
Culver City, CA
10.10.2008 5:32pm
scattergood:
Each of these points is addressed in the original post or in my response to a comment above. Additionally, no church official in any state or foreign country recognizing gay marriage has ever been required to officiate at a gay wedding and no church has been required to recognize a gay marriage. Please take the time to read the post before responding.

Please do not be disengenous. Each of these points is not addressed. Firstly, my response was directly to your posting, it shouldn't be my responsibility to read YOUR comments to another poster.

Secondly, the issue was not about FORCING a religious institution to perform a SSM. The issue what what would happen if they refuse to perform a SSM. The Catholic Church in MA had decided to suspend all adoptions because they didn't want to participate in same sex couple's adoption. The Catholic Church then decided to cave. The state wasn't directly involved with any of it's coercive arms, ie the courts or police or other adimistrative arms. The fact that a coercive arm of the government hasn't been involved doesn't vitiate the fact that one may, espcially since the issue hasn't been brought up for judgement.

Thirdly, to argue that no one has been sued for their beliefs around SSM because the New Mexico case involved civil unions and not SSM is sophistry and down right obfuscation. A litigant, the couple, went to a state agency, the state civil rights commission, because she didn't want to participate in the ceremony. She was found guilty and forced by the state to pay a fine. Is your argument that this isn't a worry because marriage wasn't involved? This is very thin ice to stand on, since civil unions are not seen as protected as marriage.

DC: Wrong on both counts. The conflict in Massachusetts did not arise because of SSM in that state. It arose because of a 1989 state anti-discrimination law applied to adoptions, and because, after years of facilitating same-sex couple adoptions, the Catholic group decided to stop doing so and complained that it was losing its religious freedom. In New Mexico, nothing in the case turned on the formal state recognition of the lesbian couple's relationship. The dispute arose because of a state anti-discrimination law. Neither of these disputes, nor any of the others that have been cited, arose because of gay marriage. There are legitimate concerns about religious liberty in these and other cases, as I have written on this blog many times. But they have not arisen because of gay marriage. Your complaint is with laws that protect gays from discrimination, not with laws that allow gay couples to marry (unless, of course, you oppose SSM for other reasons).
10.10.2008 5:34pm
Patrick Meighan (mail):
"A litigant, the couple, went to a state agency, the state civil rights commission, because she didn't want to participate in the ceremony. She was found guilty and forced by the state to pay a fine. Is your argument that this isn't a worry because marriage wasn't involved?"

I believe his/her argument is that the case has nothing to do with gay marriage, but rather to state non-discrimination statutes which apply to commercial service providers (but not to churches).

Whether Prop 8 passes or fails in November, the exact same thing could happen to a hypothetical photographer California. It's a red herring to the Prop 8 debate, and also to the debate as to the religious freedom enjoyed by clergy and churches in their refusal to perform rites in conflict with their own respective principles.

Patrick Meighan
Culver City, CA
10.10.2008 6:09pm
Perseus (mail):
Gay marriage will invariably be portrayed in textbooks as one more accomplishment in the struggle for civil rights for gays (complete with comparisons to Loving v. Virginia). Preventing such "gay-marriage propaganda" from dominating the curriculum will be devilishly difficult for parents to do, so the invocation of pluralism rings a bit hollow.
10.10.2008 6:10pm
Vanceone (mail):
Further reading of Dale's rhetoric is showing this great sleight of hand he has in dismissing the concerns. Gay marriage doesn't have to be taught in school! Except, the only way that happens is if marriage as a whole is withdrawn as part of the curriculum. So, be silent about the whole subject or have gay marriage forced in as an approved event. The same goes for "withdraw the child upon notification." As it currently stands, you cannot discuss marriage in California without discussing gay marriage in schools. The only way to avoid it is to avoid the conversation--either the school district kills all talk, or the parent has to take the child out. There's no option for discussion of regular marriage only, is there?

See This link to read a further explanation of why the LDS church in particular is supporting Proposition 8.

And as for the "slippery slope is a logical fallacy so can't be used!!!!" argument: history doesn't lie. True, logically speaking it's possible that SSM won't lead to severe restrictions on religion. History and the parties involved show that it's a faint hope--there are groups who are explicitly wanting to crush Christianity under their Jackbooted gay feet by using hate speech and discrimination codes.

What happens when my church wants to use a city park? We don't support SSM. Will we be allowed--after all, we 'discriminate' and thus, letting us use the park is supporting discrimination, right?

That's what is going to happen, and we all know it. SSM advocates know it, the opponents know it, and yet we are the ones labeled "bigoted" for trying to advert becoming second class if not worse citizens in this country.
10.10.2008 7:01pm
byomtov (mail):
I would ask the author to tell us what would happen if a religious organization refused to conduct a same sex marriage or to facillitate in a same sex couple's adoption? The MA Church issue went away because the Church caved, but what would happen if they didn't? The answer is obvious, the Church would be penalized, fined, and eventually stripped of the religious exemption on its taxes.

I'm not the author, but let me take a shot.

Nothing would happen to the tax exemption.

On what do I base this? It turns out that we have examples at hand. Many rabbis refuse to perform interfaith weddings. I believe that Roman Catholic priests sometimes (often?, always?) will marry interfaith couples only if they agree to certain conditions dealing with religion. Yet these synagogues and churches do not lose their tax exemptions.

Maybe the answer isn't as obvious as you think. Or maybe it is obvious, but you just have it backwards.
10.10.2008 7:21pm
Elliot123 (mail):
I doubt voters see the fine legal distinctions in what is the result of one law and what is the result of another. They are not going to comb through the statutes and determine that a photographer was fined under one statute rather than another. They see a larger issue, and that's how they vote. Folks may not like it, but that's how it works.
10.10.2008 7:26pm
Randy R. (mail):
Vanceone: " In Philly, they are being booted from their almost hundred year old building they built, just because they happen to be on government property they gifted to the city almost a hundred years ago. "

You know, one thing is that the anti-gay forces love to portray themselves as victims, even when they are not. The facts in the BSA in Philly is that they were allowed to use a publicly owned building and were charged a token rent each year. Philly has an anti-discrimination clause (They do NOT have SSM). They informed the BSA that because they discriminate against gays, they are in violation of the law. So the city gave them an option: either end the discrimination and continue to rent at the token amount, or continue to discriminate, but pay market rate rents.

They were not "booted" out of their space. They have a choice. They choose to continue to discriminate. In that case, the rent merely went up to what any other group would have to pay, and they choose to move out.

Since gay people are tax payers too, there is no reason why gays or any other tax payer should subsidize an organization that discriminates against any other group, or violates the law. Surely you would agree with that.
10.10.2008 7:43pm
scattergood:

I'm not the author, but let me take a shot.

Nothing would happen to the tax exemption.

On what do I base this? It turns out that we have examples at hand. Many rabbis refuse to perform interfaith weddings. I believe that Roman Catholic priests sometimes (often?, always?) will marry interfaith couples only if they agree to certain conditions dealing with religion. Yet these synagogues and churches do not lose their tax exemptions.

Maybe the answer isn't as obvious as you think. Or maybe it is obvious, but you just have it backwards.


That is a fair enough response, but the problem is that it has never been challenged in any sort of court. Nobody has taken a Rabbi to court because of their refusal to marry them, so you cannot be sure of the outcome. And while I cannot be 100% sure of the outcome vis a vis a Church's tax status when challenged the evidence doesn't seem compelling that they will be protected.

I point to a number of similar situations:

The New Mexico photographer and her lesbian clients.
The Canadian preacher and his hate speech by quoting the Bible.
MA parents being unable to shield their children from SSM indoctrination.
The Boy Scouts being refused usage of public space for their 'discriminatory' behavior.

and the list goes on and on. It seems that when people don't want to participate in SSM and they are challenged, the state coerces them to either be fined or to participate or to lose some ability to function. This started with everybody saying that SSM would NEVER happen despite how the Laurence v Texas case was decided.

Please excuse us for doubting that the line will be drawn HERE and no further, it constantly moves. My prediction is that polygamy will fall next as an intertwining of everybody has the right to chose their partner, you can't descriminate on the basis of marital status, and religious freedoms since many religions explcitly support polygamy (Judaism included).
10.10.2008 7:51pm
Patrick Meighan (mail):
"I doubt voters see the fine legal distinctions in what is the result of one law and what is the result of another. They are not going to comb through the statutes and determine that a photographer was fined under one statute rather than another. They see a larger issue, and that's how they vote. Folks may not like it, but that's how it works."

This reads like justifying the telling of a lie, on the basis of the fact that lie-telling is effective.

Patrick Meighan
Culver City, CA
10.10.2008 8:30pm
Patrick Meighan (mail):
"What happens when my church wants to use a city park? We don't support SSM. Will we be allowed--after all, we 'discriminate' and thus, letting us use the park is supporting discrimination, right? That's what is going to happen, and we all know it."

Well, I dunno, what happens when a Catholic Church anywhere in our nation uses a city park? They don't support marriages between divorcees. Are they allowed--after all they 'discriminate' and thus, letting them use the park is supporting discrimination, right?

Has the Catholic Church been hit by a wave of city park expulsions?

Patrick Meighan
Culver City, CA
10.10.2008 8:33pm
Patrick Meighan (mail):
"That is a fair enough response, but the problem is that it has never been challenged in any sort of court. Nobody has taken a Rabbi to court because of their refusal to marry them, so you cannot be sure of the outcome. And while I cannot be 100% sure of the outcome vis a vis a Church's tax status when challenged the evidence doesn't seem compelling that they will be protected.

I point to a number of similar situations:

The New Mexico photographer and her lesbian clients.
The Canadian preacher and his hate speech by quoting the Bible.
MA parents being unable to shield their children from SSM indoctrination.
The Boy Scouts being refused usage of public space for their 'discriminatory' behavior.

and the list goes on and on."


And not one item on that list (on and on though it may go) pertains to an American church or clergyman being in any way sanctioned for refusing to conduct a rite in violation of its/his/her religious principles (be it an interfaith wedding, or an interracial wedding, or a same-sex wedding)... which is the specific onerous result of Prop 8 that has been alleged by the ad in question, and by Prop 8's supporters on this thread. That's what makes the allegation outright false.

"It seems that when people don't want to participate in SSM and they are challenged, the state coerces them to either be fined or to participate or to lose some ability to function."

Except for when the "people" in question is a church, or a clergyman within said church... which was the specific claim made by the lie-telling ad produced by Yes On 8.

Patrick Meighan
Culver City, CA
10.10.2008 8:53pm
Patrick Meighan (mail):
"...which is the specific onerous result of Prop 8 that has been alleged by the ad in question..."

That should've read: "...which is the specific onerous result of Prop 8's defeat that has been alleged by the ad in question..."

Sorry 'bout that.

Patrick Meighan
Culver City, CA
10.10.2008 8:58pm
cls (mail):
As far as I can see the commentators here, who disagree with this analysis, are engaged in the same sort of dishonest diversionary tactics as the ad itself. They continually bring up legal cases totally unrelated to gay marriage. The case to which they refer hinge on laws which exist already, exist separate from marriage laws, and which will continue to exist whether gay marriage is allowed or not.

Whether those laws are bad is a different topic but they are not marriage laws. In fact, some of the cases to which they refer are in locations where gay marriage is forbidden indicating that marriage laws are not germane to their claims.
10.10.2008 9:22pm
Randy R. (mail):
"The New Mexico photographer and her lesbian clients.
The Canadian preacher and his hate speech by quoting the Bible.
MA parents being unable to shield their children from SSM indoctrination.
The Boy Scouts being refused usage of public space for their 'discriminatory' behavior.

and the list goes on and on. "

No, the list does NOT go on and on. There have been anti-discrimination laws on the books in some places for a few decades. The laws cover approx. one third of the entire US population by some estimates. The MOST you are able to come of up with regarding any sort of problem with these laws are the same old three or four examples. It's always the wedding photographer. It's always that one Canadian preacher. See above about the Boy Scouts, which isn't a case of prohibiting anything at all.

I really laugh at the business about parents being unable to shield their children. Shield them from what? When they grow up, they will most likely encounter a gay person at some point in their life -- either at school, college, the workplace, organizations, neighbors, whatever. Shouldn't they learn that gay people are people too? What you are really saying is that you don't want your kids to learn that gays are people -- you want to teach them to hate gays, avoid them, dispise them, vote against their interests. Don't you have enough respect for your children to let them make their own decisions about gays?

obviously, what you are afraid of is that your children will treat gay people as normal people, that is what you don't want. why not?

The only other thing that a parent can possibly be afraid of is that if their kids see gays in a positive or even just a neutral light, then somehow your kids will turn out gay. News flash! You can't teach kids to be gay -- either they are or they are not. If they are, then it's much better that they realize it early and accept it for themselves. If they are not, then you have nothing to worry about. Either way, there is nothing as a parent that you can do to change the situation.

I think if more anti-gay parents realized that only a few kids are gay, and that you can't "learn" it or somehow become gay, then most would sigh relief and just let us be.
10.10.2008 10:59pm
Randy R. (mail):
David Larson: " The fact is that we are well on our way to the creation of a thought-police state, where any resistance to the dominant end-of-the-empire, mortally decadent p.c. party line will be criminalized."

And why exactly do you think that gays have anything to do with mortal decadence, or end of empire? It seems that this republican administration has furthered our decline and end of empire more than anything else, and it is in fact quite anti-gay in it's agenda.
10.10.2008 11:02pm
Randy R. (mail):
"If there is a possibility of breaking the health budget because there is a spouse with AIDS, the employer will start to pass on the gay applicant."

The GSA did a study a few years ago and concluded that if SSM is recognized federally, it will be a net benefit to the federal treasury.

The fastest growing segment of the population with AIDS is black females. Therefore, according to your logic, employers will start to pass on black females. However, AIDS trails behind other diseases such as cancer and heart disease, which strick mainly white people, and white males in particular. Therefore, according to your logic, employer will start to pass on white males.

As you are no doubt aware, lesbians have the *lowest* incidence of AIDS of *any* group. Therefore, according to your logic, employers will be actively seeking lesbians to save on their health budgets.

So you should be careful how you frame your arguments in favor of discrimination -- it cuts both ways.
10.10.2008 11:08pm
Randy R. (mail):
Vanceone: " So, be silent about the whole subject or have gay marriage forced in as an approved event."

And what is wrong with telling students that gays can get married in a few states? You would prefer to hide facts from students? They aren't that stupid, in case you didn't know.

What exactly are you afraid of if students learn that gays and straights can get married? You really think that your heterosexual child will say, hey, I want to get married to a person of my same sex just because I can? Is that the fear? help me out here!
10.10.2008 11:11pm
Elliot123 (mail):
"They continually bring up legal cases totally unrelated to gay marriage. The case to which they refer hinge on laws which exist already, exist separate from marriage laws, and which will continue to exist whether gay marriage is allowed or not."

That's correct, and I think it illustrates the point that most people are not dissecting the issue into its various components. They are seeing a single gay rights movement, and they perceive it as continually struggling for the next incremental victory.

I suggest many would be content with the next increment, but look down the road and forecast a further increment which they are not content with. So, they figure it's best to stop the progress now, rather than later.

The anit-SSM people have brilliantly figured out how to use this to their advantage. They don't attack SSM, which is the next increment in California; they aim their attacks a few increments down the road. Then the tell the folks now is the time to stop this before it gets too out of hand.

Now, they might be right, or they might be wrong, about gays plans for future increments. It doesn't matter. As long as they can raise a concern with people, that concern can be strong enough to offset the very weak support the voters may have had for the current increment under consideration.

It also works looking back in time. People may be bringing up cases which hinge on current laws, and many people disagree with those outsomes. Then all the anti-SSM leader has to say is, "Did you think XYZ law would result in ABC?. Well it does. Nobody told you that, did they? We hear all about hospital visitation, health insurance, and inheritance, but nobody said anything about forcing Christians to violate their conscience. What aren't they telling you now? Just look at what happened to that photographer. Look what happened to those Boy Scouts. We have to stop this gay stuff right now!"
10.11.2008 12:18am
Randy R. (mail):
Right you are, Eliiot. Thanks for hitting it on the nose.

At the base root of all this is the fear that people will have to treat gays as equals. They really believe that gays are immoral and out to recruit their children. If they would spend just half as much time fighting us and spend it with gettin to know us, they would realize that we are just like them -- we have jobs, we want to pay our bills, we have dogs and cats, we want to take care of our parents, and so on. There is so much more that is similar than is different, but these people focus on the differences, not the similarities.

I guess they have to feel superior to someone or they can't have a good opinion of themselves.
10.11.2008 12:30am
Mike K (mail):
I personally believe it is NOT a gov-t's business to define marriage. The state should provide a mechanism of establishing and legally supporting civil unions in arbitrary form.

Consider polygamy. Why gay marriage and not polygamous marriage? Why polygamy is listed alongside with communism and terrorism on the US Citizenship application form? Note that there are countries and cultures existing today that allow and support this form of marriage. It also has rich historical traditions.

It is interesting to note that a number of gay activists strongly oppose polygamy while advocating gay marriage. In their opinion, marriage is between two and only _TWO_ people.
10.11.2008 3:02am
John D (mail):
Mike,

What differences can you draw between "civil unions" and "marriage." As far as the state is concerned, the optional religious ceremony is irrelevant.

The state has a legal partnership program: they call it marriage. How are you suggesting anything different?
10.11.2008 4:24am
scattergood:

DC: Wrong on both counts. The conflict in Massachusetts did not arise because of SSM in that state. It arose because of a 1989 state anti-discrimination law applied to adoptions, and because, after years of facilitating same-sex couple adoptions, the Catholic group decided to stop doing so and complained that it was losing its religious freedom. In New Mexico, nothing in the case turned on the formal state recognition of the lesbian couple's relationship. The dispute arose because of a state anti-discrimination law. Neither of these disputes, nor any of the others that have been cited, arose because of gay marriage. There are legitimate concerns about religious liberty in these and other cases, as I have written on this blog many times. But they have not arisen because of gay marriage. Your complaint is with laws that protect gays from discrimination, not with laws that allow gay couples to marry (unless, of course, you oppose SSM for other reasons).


This is of course more of the flawed logic that SSM advocates use. Are you seriously suggesting that the discrimination issue and the 'right' to marry are not intertwined? If there is no right to marry, then what discrimination occurs? It is the same flawed logic that led people to conclude that Laurence v Texas would not lead to SSM. That you cannot see the unintended consequences of opening certain doors is a limitation of the argument you are putting forth.

The NM dispute and the MA dispute came about specifically because of a civil union and teaching of SSM to children. That you choose to say that they have nothing to do with SSM is again disingenuous.

Further, it is the very anti-discrimination laws and ideas which lead to judical imposition of SSM. So to argue that the two are not linked is again disingenuous or intellecutally fraudulent.

Now that the CA Supreme Court has ruled that the state has essentially no ability to determine who can get married, please tell me, where does it end? The ruling specifically says that the right to privacy trumps the right for the state to determine who may be married. Is consangunation permissable between informed partners? Polygamy if all the partners agree? If not, why not?
10.11.2008 10:07am
byomtov (mail):
That is a fair enough response, but the problem is that it has never been challenged in any sort of court. Nobody has taken a Rabbi to court because of their refusal to marry them, so you cannot be sure of the outcome. And while I cannot be 100% sure of the outcome vis a vis a Church's tax status when challenged the evidence doesn't seem compelling that they will be protected.

In other words, you're going to believe whatever you want regardless of the evidence.

Are you seriously suggesting that the discrimination issue and the 'right' to marry are not intertwined? If there is no right to marry, then what discrimination occurs?

Well, I am seriously suggesting that. Suppose, instead of a commitment ceremony, the couple were planning a big party, maybe a birthday celebration for one of them. They try to hire the photographer for the event and she refuses. Wouldn't the same law apply? Do you think that Lesbians should not be allowed to have birthday parties?
10.11.2008 11:05am
Sub Specie AEternitatis (mail):
Prof. Carpenter, let me start by stating that I tentatively support full gay marriage as a matter of policy and would expect to vote for it as legislator. So, when I criticize your argument here, it is not out of irrational hatred of gay people.

Yet, I believe you are seriously understating the risks to the freedom of speech and religion arising in particular out of the recognition of a constitutional right to gay marriage.

Imagine yourself in the position of a hypothetical inferior court judge ruling on a complaint that the Catholic church and its associated institutions should be deprived of their tax exempt status because they refuse to perform or sanction gay marriages.

The plaintiff's argument is simple: Loving v. Virginia (1967) (unanimous Supreme Court decision recognizing a constitutional right to interracial marriage) + Bob Jones University (1983) (8-1 Supreme Court decision upholding, over First Amendment defense, denial of tax exemption to "fundamentalist Christian" school which did not permit interracial marriage) + In Re Marriage Cases (recognizing a constitutional right to same-sex marriage)

Given these binding precedents, it would be extremely difficult to uphold the tax exemption on any sort of principled basis. Saying, at this point, that interracial marriage and gay marriage are not parallels after all would be a little late in the game, in particular after so much pro-gay marriage legal and political rhetoric is based on exactly that parallel. Even if that distinction is upheld, it would doubtlessly lead to cries that gays even now continue to be "second class citizens."

An unprincipled judge could cook up some argument ultimately based on nothing more than that current opinion polls show that the minority opposing same-sex marriage is still a little stronger than the minority opposing interracial marriage was in 1983. But that would be contemptible, as I'm sure Prof. Carpenter would agree.

Also note that 16 years passed between the recognition of the right to interracial marriage and its effective imposition on dissenting religions. So that it has not happened yet in four years in Massachusetts is hardly decisive.

So, Prof. Carpenter, I'd be quite willing to take a Long Bet that the recognition of same sex marriage will lead to the revocation of the tax exemption of a dissenting religious institution within one generation. Would you take the other side of that bet?

The advocates of Prop. 8 are not being dishonest or stupid to raise this outcome.
10.11.2008 11:11am
Randy R. (mail):
"What differences can you draw between "civil unions" and "marriage."

Simple. All federal laws are written with the word marriage. If you aren't married, you cannot avail yourself to any of those laws.

Example: only spouses can claim social security benefits, not civil unionized people.
10.11.2008 12:41pm
Randy R. (mail):
sub: "Imagine yourself in the position of a hypothetical inferior court judge ruling on a complaint that the Catholic church and its associated institutions should be deprived of their tax exempt status because they refuse to perform or sanction gay marriages. "

Thanks for your thoughtful analysis. It's nice to see people actually aruging law instead of just mouthing off anti-gay bitterness.

Before you have a case, you must have a controversy. Therefore, you would need a gay couple attempting to get married in a catholic church, and then being refused.

I believe this is actually fairly unlikely. Most people do actually take their marriage vows seriously, and if the church is clear that it will not marry same sex couples, I don't see why anyone would want to push the issue. You want your marriage ceremony to be a happy time, right? We haven't seen any such issue after several years in Massachusetts, so I don't think that it will happen.

However, I also realize there are nut cases out there, even in the gay world, and someone might push a case just to prove a point, or to try to prevent the church from continuing their tax exemption. In that case, I think Congress should just rewrite the IRS code and state that any church will remain compliant with the tax exemption code so long as denial of SSM is part of their actual belief system.

Gays may have a constitution right to marriage, that doesn't mean that we have a right to be married anywhere. As long as the right can be effected by the other church down the street, or the justice of the peace, then any constitutional rights are thereby discharged without much inconvenience.
10.11.2008 12:48pm
John D (mail):
Randy,

I agree with you completely. My question was directed to Mike who had raised the tired, "why can't gay people be happy with civil unions?"

"Civil unions" seems to be about a vague a term as possible. It means whatever the user wants. I'm sure we both agree that suggesting civil unions is a dodge. It's a way to avoid defining marriage in legal terms that you'd want opposite-sex couples to deal with and at the same time pretending to care about the rights of same-sex couples.

Absolutely, we (and that includes my husband) cannot be satisfied with anything short of marriage and marriage recognized by the Federal Government to which we send our tax dollars (from our tax-exporting state).

My question for Mike was "what are the characteristics of a 'civil union,'" besides "reserved for same-sex couples"? And of, course, how would you implement the granting of rights which married couples have that cannot be obtained through contract?

If it is just the word "marriage," then I have somehow confused this lexicography blog for a legal blog.

Note to the opponents of same-sex marriage: Language is a human artifact. Words derive their meaning from usage; they are not absolutes. The meaning of words can change over time, sometimes radically.

If you wish to argue that same-sex couples ought not get the word "marriage," you are in desperate need of an actual argument.
10.11.2008 2:06pm
Elliot123 (mail):
"In that case, I think Congress should just rewrite the IRS code and state that any church will remain compliant with the tax exemption code so long as denial of SSM is part of their actual belief system."

Wouldn't that put the courts in the position of deciding what is part of a religion's actual belief system? That gives government the power to decide what a religion's doctrine is.

"Civil unions" seems to be about a vague a term as possible. It means whatever the user wants."

I suggest that "civil marriage" shares that same vagueness. A couple can make their marriage whatever they choose. All civil marriage requires is legal age, unmarried status, two witnesses, and $25. Beyond that we have only the vast vistas of vagueness.

The vagueness of civil marriage is itself a strong argument for SSM. The relationship is not defined. It's great fun to simply ask people what civil marriage is. Then sit back and enjoy the show.

Does anybody know what civil marriage is? We sure spend a lot of time debating it. It would be nice to know what we're talking about. Anyone know?
10.11.2008 2:46pm
Aleks:
Re: Prof. Carpenter ignores the New Mexico and Canadian cases where people have indeed been punished for refusing to assist in gay marriages.

This isn't Canada so whatever has happened there holds no precedent here. Might as well argue that because China persecutes Christians the US inevitably will too.
As for New Mexico, I am a bit confused by your reference. New Mexico does not allow for SSM so how is it possible that anyone could have been punished for not performing one? Though to be sure if a public official refuses to do his legally mandated job because of personal prejudices, then he deserves to lose that job. Indeed, an honorable person in such cicrumstances would quit his job before it came to that.

Re: This ad was created by the same bigoted zealots who opined that Laurence v Texas would lead to legalized homosexual marriage.

Lawrence vs Teaxs was a federal case; Gay marriage in MA, CA and now CT were decided on state constitutional grounds and as such have nothing to do with that case.

Re: I would ask the author to tell us what would happen if a religious organization refused to conduct a same sex marriage or to facillitate in a same sex couple's adoption?

The same thing that happens when the RCC refuses to marry a divorced couple or a non-Christian couple, or refuses to ordain a woman, or when the Baptists refuse to baptize children or when my own church refuses Communion to a non-member.
Nothing at all.
There is not a single example in American history of a church being compelled by law to administer its sacraments against its rules. (And no, adoption is not a sacrament).

Re: With SSM now perfectly legal, saying opposition to it is hate speech, and must be silenced. By force, if necessary.

Interracial marriage is perfectly legal, yet people who disagree with it (see: Bob Jones University) suffer no legal consequence for saying so.

Re: since it turned out to be false when the claim was made that Lawrence wouldn't bring SSM

Lawrence hasn't. There has been no legal reasoning leading from Lawrence to SSM. These cases have been decided on the basis of the relevant state constitutions.

Re: If there is a possibility of breaking the health budget because there is a spouse with AIDS, the employer will start to pass on the gay applicant.

Nothing (so far) requires an employer to offer health insurance at all. Moreover many companies (my own employer included) already offer domestic partner benefits. And many companies already employ workers who are themselves infected with HIV. Any issues with HIV+ people already exist and the costs are already fully realized.

Re: Preventing such "gay-marriage propaganda" from dominating the curriculum will be devilishly difficult for parents to do

Parents need to realize that their children will someday grow up into adults and make up their own minds on this and every other issue. It is not the proper role of a parent to control the future in perpetuity. My grandmother was horrified by interracial marriage, but my mother was perfectly accepting of it. That didn't ruin their relationship, they loved each other still, and my mother took care of her mother in the latter's failing years. Why do you care what your kids think of SSM? Don't you have enough respect and, yes, love for them to allow them to decide these matters for themselves?
10.11.2008 7:45pm
Elliot123 (mail):
"Don't you have enough respect and, yes, love for them to allow them to decide these matters for themselves?"

If a curriculum taught that homosexuality was unnatural and a danger to society, would love and respect for a child demand a parent remain silent so the child could decide the matter for himself?
10.12.2008 12:02am
John D (mail):
I saw people with Prop 8 signs today. A couple examples stood out:


"Prop 8 = More Freedom"

"Prop 8 = Less Government Intervention."



I think these two things mean just about the same thing. I just don't think that they contain a grain of truth.

I was not in a position to ask, "just how is that?" How is a law that intervenes into the family decisions of same-sex couples less government intervention.

Between the McCain campaign and the Prop 8 campaign, I can only conclude that the people on the other side of things from me have lost all regard for truth.

Certainly this favors the argument that the Prop 8 campaign is based on lies. And given that they seem to be willing to say anything to inflame people into supporting them, I worry that if they win in November, we can expect a challenge to domestic partnership to come along quickly.

They can say that they're fine with domestic partnership now, but we don't have any reason to trust them.
10.12.2008 2:18am
Elliot123 (mail):
"And given that they seem to be willing to say anything to inflame people into supporting them, I worry that if they win in November, we can expect a challenge to domestic partnership to come along quickly."

I agree. Welcome to the real world. And domestic partnership will also lose unless supporters realize their current strategies don't work. Gays are trying to use arguments that work n court to win an election. It doesn't work. Nobody cares.
10.12.2008 2:02pm
Opher Banarie (mail) (www):
Collectively, the gay community also appears to be "suit happy" and frequently file charges of descrimination and/or abusive practices, even when most people feel the action is unwarrented. The cost of defending oneself, even when the individual is in the right, may be more than the person can afford.

Consider, too, the SLAPP (Strategic Lawsuits Against Public Participation) the ACLU and other organizations file against schools and businesses to prevent them from staying neutral on issues such as SSM. They know the targets of these lawsuits cannot afford to defend themselves endlessly, so the threat of the lawsuit is enough to get policy changes made.
10.12.2008 9:50pm