The website Mormons for Marriage (which opposes the church in its support of Proposition 8) has failed (or refused) to post my response that I wrote to Morris Thurston, so I decided to post it here:
Mr. Thurston: I have read your document responding to the Churchâ€™s 12 points. Let me say that I appreciate your taking the time to write, but ultimately find it to be misleading. Let me elucidate. First, a little about my background. I have practiced in the areas of Constitutional litigation and education law for approximately 23 years. I have represented LDSFS in several cases, though I havenâ€™t done so in the last 10 years. I believe that I can assess your arguments based on my experience and knowledge of these areas. Letâ€™s take them one-by-one:
1. Teaching about same sex marriage. You claim that passage of proposition 8 will not require teachers to teach that â€œsame sex marriage is â€˜just as good asâ€™ as traditional marriage.â€ However, your response is both misleading and uninformed. Given that SSM is legal, you are correct that it follows that teachers will teach that same sex marriage is lawful. It wonâ€™t and cannot stop there. Teachers will be prohibited from making any distinctions between traditional and SSM. It therefore follows that teachers will be barred from stating that the State, e.g., has a greater interest in protecting traditional heterosexual marriage than SSM. The problem as I see it is that no distinction can be made between SSM and traditional marriage. Any student who expressed opinions regarding the distinction, for instance that that homosexual conduct is sinful, could possibly be regarded by a school district as engaging in hate speech. What is to stop that kind of inference? Does the law mandate that it be so treated? Of course not â€” but it leaves such responses as an open possibility. The implication easily arises that SSM is just as important and on equal footing with traditional marriage in all respects and no student or teacher can teach that there are distinctions of value or that homosexuality even within a â€œmarriageâ€ is a sin. That was the Churchâ€™s point as I saw and to that extent it is accurate.
2. The tax exempt status of churches may be challenged. You state flatly that this is a â€œfalse consequence,â€ arguing that the argument is based on a New Jersey case. In fact, it is easy to see how the challenge can and will arise. As you are well aware, the concern is actually based on Bob Jones University v. United States, 461 U.S. 574 (1983). For those interested, here is a short link: http://en.wikipedia.org/wiki/Bob_Jones_University_v._United_States It is easy to see how Bob Jones could be extended in California to deny tax exempt status to the Church in many respects (education, social services,etc.) in California if Proposition 8 fails. Here is how: the Ca. Supreme Court held that the right to SSM is a â€œbasic and fundamental rightâ€ that is on par in every respect with traditional marriage. Those who deny â€œfundamental rightsâ€ to others can be denied tax exempt status. Nor is the LDS Church the only organization to express such concerns. See e.g., http://en.wikipedia.org/wiki/National_Religious_Broadcasters Iâ€™m surprised that you didnâ€™t discuss this possible extension of the rationale of the Bob Jones case.
3. There is no concern that religious organization might be denied the right to originate adoptions. You argue that the Church misleads because it states that Catholic Charities was forced to shut its doors. The Church doesnâ€™t state that. Further, there is a legitimate concern here. The State of Mass. would not exempt Catholic Charities from the demand that it perform gay adoptions. The Church looked at the statutory framework and how the Mass. Supreme Court had interpreted and expressed extreme concern that it would lose a costly lawsuit â€” and the mere requirement to defend its religious position was prohibitive for it.
You are correct that there are difference between LDSFS (whom I have represented) and the Catholic Charities â€” primarily in the refusal of LDSFS to accept government support. However, as you well know, the courts often search far and wide to find a way to interpret any connection with federal or state funding as receipt of such funds â€” and the tentacles of the government are far reaching. This concern is very legitimate. No, the case against LDSFS would not be identical to the Catholic Charities case, but the distinctions that you point to are far from dispositive and there is a very real concern that California would interpret its law much like Mass. thus forcing a legal showdown. However, unlike Mass., California has interpreted its State Constitution to establish a fundamental right and thus the case would be much stronger in California that it would have been in Mass.
You suggest that Californiaâ€™s already existing broad civil unions statute means that passage of Proposition 8 would have no effect on the outcome of such a case. You miss the fact that a statutory protection of equality between traditional marriage and a State Constitutional provision that has been construed to create a fundamental right will be interpreted very differently. The case against LDSFS would be much stronger if Proposition 8 does not pass â€” and in fact the concern will likely evaporate if it does. Your response is thus very misleading and shortsighted in my opinion.
However, the recognition that California already has a very broad civil unions statute that guarantees all of the same contractual and visitation rights as a marriage demonstrates that the battle is not over treatment or rights of same sex couples. The real issue is whether the State will bless the union of same sex couples as being just as valuable and morally legitimate as heterosexual couples. I take is as at least arguable, and in my view obvious, that the State has a much greater interest in fostering and protecting heterosexual relations and natural reproduction (by that I mean that mean and women often have babies when they get together). Proposition 8 allows the State to recognize that much greater interest while the novel and current California Supreme Court reading of its state Constitution does not.
4. You suggest that passage of Proposition 8 would have no effect on university housing. This is your most misleading claim. The fact is that it is easy to see how the Yeshiva University precedent would be adopted and extended in California unless Proposition 8 passes. That it hasnâ€™t been tested to date doesnâ€™t entail that passage of Proposition 8 would have no effect as you misleadingly contend. Your argument is a simple non-sequitur, i.e, it hasnâ€™t been ruled on yet so passage of Proposition 8 wonâ€™t have an effect if it is ruled upon. That is just non-sense. The fact that the issue may not arise with a religious school is beside the point when we speak of state sponsored institutions. It may well change the requirement that an LDS student will be required to house with someone of the opposite or same sex given the equal protection arguments of the California Supreme Court.
5. We are largely in agreement that ministers who teach that homosexual conduct is a sin will not be charged with hate crimes â€” but because these rights are well-established under the United States Constitution and California is powerless to change them.
6. I donâ€™t know enough to comment on the financial effect, but I am highly dubious that the revenues from marriage will off-set the tax-payer burden for benefits for room-mates. Further, you miss the point. The issue isnâ€™t cost with respect to net government revenues, but the cost to private litigants who disagree with SSM.
I believe that you are also incorrect about the effect of passage of Proposition 8 on the North Coast Womenâ€™s Care case. You are correct that it was decided under Californiaâ€™s very broad anti-discrimination statues. However, if Proposition 8 passes, these statutes are likely to be read in pari materia with Proposition 8 and therefore the outcome may well be different. Passage of a new law has an effect on interpretation of existing laws and you well know. This fact points to a serious defect in your legal analysis throughout your response. You assume that if a case is decided based on the existing laws that Proposition 8 will not have any effect. It is a basic failure to acknowledge the effect on interpretation of existing laws when a new law is passed. This is the kind of argument that I find used in your response repeatedly and it is misleading and quite incomplete.
For these reasons, your analysis critically misleads in many respects and fails to engage in the relevant analysis at several critical points. The chief failing is the refusal to address how the passage of Proposition 8 will affect statutory and Constitutional interpretation in the future â€” the effect would be profound.
Now let me be clear â€” nothing I have said ought to be interpreted as a suggestion that there is anything inherently wrong with a person who has homosexual tendencies. Nevertheless, the claim made on this site that no homosexuals have a choice about their orientation is just dead-wrong. The scientific evidence established quite conclusively that there is in fact a continuum and many who have such tendencies can swing either way. However, there are likely some who have no choice about whether they have tendencies. However, they do have choice about their actions â€” such a distinction is fundamental to the gospel of Jesus Christ and the failure of this site to even acknowledge that fact is deplorable in my view. Notwithstanding my support for Proposition 8, nothing should deter us from accepting those who may have same sex attraction tendencies in full fellowship, with affirmation of love and support for them. If they choose to sin, then I am not called to judge, (I have plenty of my own sins to deal with).
I support civil unions â€” and I support them for all state sponsored ceremonies that establish contractual protections for relationships. I do not support state sponsored marriage of any sort and I believe that it in a world where folks are properly informed the institution of marriage will be seen as solely a religious rite. It therefore violates the 1st Amendment Establishment Clause for the State to perform marriages on par with religious rites. Some day weâ€™ll make such a distinction and the issue can be resolved in that way.