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.