Several versions of a document entitled, “The [insert number here] Consequences of a Loss on Prop 8″ have been circulating on blogs and emails for about a month now. There are many places online where rebuttals have been posted, with varying degrees of rancor, including here.
For a link to Part 2, the document created by Morris Thurston, see this related post
What follows here are some thoughts and background about some of the arguments and concerns that Proposition 8 supporters are throwing out to the world to consider. Like all political soundbites, it is hard to present full facts and background in a bullet list. This series of discussions is meant to fill in some of the blanks and help voters consider whether or not the arguments are well-founded. Hopefully, some light will also be shed on the differences between California law and other laws on which several of these consequences are based.
1. Children in public schools will have to be taught that same-sex marriage is just as good as traditional marriage . The California Education Code (§51890) already requires that health education classes instruct children about marriage. Therefore, unless Proposition 8 passes, children will be taught that marriage is a relation between any two adults regardless of gender. There will be serious clashes between the secular school system and the right of parents to teach their children their own values and beliefs.
The Education Code cited specifically states school districts will teach “family health and child development, including the legal and financial aspects and responsibilities of marriage and parenthood.” It also requires that each school community – parents, community and teachers actively develop, plan, approve and implement the curriculum.
Another section of the education code (Sec. 51933) specifically addresses Comprehensive Sexual Health Education and HIV/AIDS Prevention. This section says school districts may provide age-appropriate instruction, K-12th grade. If districts elect to offer such courses, they have to meet several criteria, including:
 Instruction and materials shall be age appropriate.
 All factual information presented shall be medically accurate and objective.
 Instruction and materials shall be appropriate for use with pupils of all races, genders, sexual orientations, ethnic and cultural backgrounds, and pupils with disabilities.
 Instruction and materials shall encourage a pupil to communicate with his or her parents or guardians about human sexuality.
 Instruction and materials shall teach respect for marriage and committed relationships.
Finally, the section on sexual health education ends by saying, “This article shall not apply to an educational institution that is controlled by a religious organization if the application would not be consistent with the religious tenets of that organization.”
Since parents must already navigate the waters of health and sex education in schools which teach respect for “committed relationships,” and which teach ideals that may be different from ideals in many LDS homes, adding one more item to the list of things that are different about “The World,” should not be an overburdensome problem to a people that prides itself on being “in the world, but not of the world” or, just plain, “peculiar.”
2. Churches will be sued over their tax-exempt status if they refuse to allow same-sex marriage ceremonies in their religious buildings open to the public. While pastors, priests, ministers, bishops, and rabbis may not be forced to conduct such marriages themselves, they will be required to allow such marriages in their chapels and sanctuaries.
This argument stems from a legal case in Ocean Grove, New Jersey. The Ocean Grove Camp Meeting Association (OGCMA), a Methodist organization that owns all of the property in Ocean Grove.
A lesbian couple wanted to rent the Ocean Grove Boardwalk Pavilion to celebrate their civil union. The Ocean Grove boardwalk pavilion, however, has been used as a public space for decades. Bands play there. Children skateboard through it. Tourists enjoy the shade. It’s even been used for debates and Civil War re-enactments. The OGCMA considers the public pavilion part of its church.
The New Jersey Supreme Court found that the OGCMA’s decision is in direct defiance of recent New Jersey state legislation and a New Jersey Supreme Court ruling recognizing same-sex couples and granting legal status to civil unions. Further, given the multiple civic and religious uses of the pavilion, the space is considered a place of public accommodation under the New Jersey Law Against Discrimination. In accordance with the law, same-sex couples are entitled to use the pavilion for civil union ceremonies.
In the case of LDS marriages, church buildings, and especially temples, are not generally available to the public. Since these buildings are not public places, they do not fall under the jurisdiction of California courts the same way the property in New Jersey did. Now, if churches start using their property for Civil War Re-enactments or band concerts or skateboarding, perhaps courts will take a second look at their property usage.
Assuming a same-sex couple would want to get married in a building that was owned by an organization hostile to same-sex marriages, the couple would have to prove that the building was a public place, that others were allowed to use it, and that they were being discriminated against because of their sexual orientation. Courts have not yet ruled on this, so the law is unclear at this point.
California’s constitution and laws already make discrimination on the basis of sexual orientation illegal, and the changes proposed by Proposition 8 would make no difference there. So even if Proposition 8 does pass, a same-sex couple wanting to hold a commitment ceremony to acknowledge is domestic partnership registry, for example, could bring a lawsuit against a church that denied access to them yet allowed access to other couples based on laws already on California’s books.
Churches that don’t rent out their halls or sanctuaries (or temples) to the public will not be creating public spaces and would not have to comply with existing public accommodations laws.
Obviously, no church can be forced to perform a marriage. Mormons can’t even be forced to perform temple marriages for non-worthy members. If churches could be forced to perform civil marriages, that would be an intrusion of the government onto a religious group and contrary to the First Amendment of the U.S. Constitution.
3. Religious adoption agencies will be challenged by government agencies to give up their long-held right to place children only in homes with both a mother and a father. Catholic Charities in Boston already closed its doors in Massachusetts because courts legalized same-sex marriage there.
Gay adoption is already legal in California. When Massachusetts passed its gay marriage laws, same-sex couples did not already have that privilege or responsibility. Catholic Charities of Boston decided to stop performing adoptions rather than try to work out the immense complexities of complying with both Catholic church doctrine and the new Massachusetts laws.
Gay couples in California have the right to (and regularly do) adopt children, and Catholic Charities ended its adoption placement program in San Francisco in August, 2006 in response to a Vatican request that the church not be involved in placing children with homosexual parents. The agency still helps prospective adoptive parents, including gays and lesbians, with information and referral help through an alliance with another organization (Family Builders). It does not do formal home placement visits any longer. In May 2007, Family Builders began advertising for homosexual parents to adopt children because of the great need for adoptive families in the region. Family Builders continues to receive support from Catholic Charities.
Changing California’s Constitution by removing the right of homosexuals to marry will not make a difference in the Catholic Charities’ position on adoption, and it will not remove the ability of homosexuals to adopt children. Proposition 8—pass or fail—will not change California’s adoption laws, or increase the potential for lawsuits against adoption agencies [religious or secular] that violate state law by discriminating against prospective parents solely on the basis of sexual orientation.
In the case of LDS Family Services, it already discriminates on adoption placement by requiring adoptive parents to be temple worthy and sealed, so for LDS adoptions, this does not make a difference.
4. Religions that sponsor private schools with married student housing may be required to provide housing for same-sex couples, even if counter to church doctrine, or risk lawsuits over tax exemptions and related benefits.
This concern arises out of a student housing situation at Yeshiva University’s Albert Einstein College of Medicine in New York. Gay and lesbian students were eligible for University housing, but their partners were not able to join them because they did not have marriage certificates (which, when the suit was filed in 1999, were unavailable).
Although commonly thought of as an Orthodox institution, Yeshiva University has been chartered since 1969 as nonsectarian, enabling it to receive state and federal funding. All parties agreed that Yeshiva’s religious affiliations have no bearing on this appeal. Also, plaintiffs did not plead claims based on either the State or Federal Constitution.
The New York Courts found, based on New York City non-discrimination laws, that the university was discriminating against the couple based on their sexual orientation – not on their marital status.
Since the benefits of California’s domestic partnership law were expanded in 2003 [and went into effect in 2005], unmarried couples [gay and straight] registered as domestic partners gained the right to family student housing on public campuses. The question is this: Since this new benefit went into effect, has any private religious school in California been “required to provide housing for same-sex couples, even if it runs counter to church doctrine” in the past three years?
All LDS students attending BYU campuses must abide by the schools’ respective Honor Codes, whether or not they are married. Since the Honor Codes already deal with same-gender attraction and issues surrounding homosexuality, the schools and students need only to look so far as the respective honor codes.
5. Ministers who preach against same-sex marriages may be sued for hate speech and risk government fines. It already happened in Canada, a country that legalized gay marriage.
This argument arises out of a lawsuit that happened in Canada where hate speech laws are much more stringent and free speech is not guaranteed by a Constitution like the United States’. There are plenty of Christian churches in the United States, including churches in Massachusetts and California, preaching against same-sex marriages. Until and unless the USA narrows its free-speech rights dramatically, such a lawsuit would have no standing.