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Examining the Consequences of Prop 8 – Part 1

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:

[1] Instruction and materials shall be age appropriate.

[2] All factual information presented shall be medically accurate and objective.

[4] Instruction and materials shall be appropriate for use with pupils of all races, genders, sexual orientations, ethnic and cultural backgrounds, and pupils with disabilities.

[6] Instruction and materials shall encourage a pupil to communicate with his or her parents or guardians about human sexuality.

[7] 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.

Filed in gay,Help & Support - LDS,homosexuality,prop 8,Uncategorized | 16 responses so far

16 Responses to “Examining the Consequences of Prop 8 – Part 1”

  1. 1Mike Harmonon 10 Sep 2008 at 11:00 pm

    I finally decided to write a comment on your blog. I just wanted to say good job. I really enjoy reading your posts.

  2. 2Connell O'Donovanon 11 Sep 2008 at 8:13 am

    Excellent points all! Thank you for clearing up the misconceptions….

    For point 5, I would like to point out that the Westboro Baptist Church and Rev. Fred Phelps of Westboro, KS have long been spewing anti-Gay hate from the pulpit. Their website, godhatesfags.com is a prime example of religious-based hate speech. The actions of this Christian church are deplorable and hateful and go FAR beyond preaching against same-sex marriage, but they stand firmly on their constitutional rights, and as a former Sgt. in the US Army, I fully honor, respect, and defend their right to believe and say whatever they please. It is my understanding they have been sued for some of their more outrageous actions, but they have never lost. The phrase “may be sued” in point 5 is key. Anyone can sue anyone for pretty much anything. Now whether the lawsuit actually goes to court and the complainant actually wins depends on the legal validity of the case.

  3. 3Susanon 14 Sep 2008 at 3:23 am

    Also:

    The CA supreme court decision that recognizes a gay couple’s right to marry hinges on a condition that “no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs. (Cal. Const., art. I, § 4.)”

    While there’s no assurance that a *different* supreme court decision *could* be made down the road, or that different laws could be passed in the future, I’m not sure that Prop 8 is the most rational (charitable or politically responsible) response to that uncertainty.

    Wouldn’t a more appropriate response be to submit an amendment to the constitution that guarantees freedom of religion and speech on this matter? Is that even possible?

  4. 4Hellmuton 15 Sep 2008 at 5:50 am

    This reminds me of Rex Lee’s prediction that the Equal Rights Amendment would require unisex restrooms. Although the Equal Rights Amendment failed, many Mormon chapel do have unisex restrooms today because we need to provide for wheelchair bound brothers and sisters.

    It turns out that the unisex restrooms in our chapels are not a big deal after all.

  5. 5Franon 16 Sep 2008 at 1:40 pm

    Well, there is a difference between a unisex bathroom for handicapped people, and a general unisex bathroom, wouldn’t you say? I mean, it’s different when you enter a bathroom that is only intended for one person at a time (one toilet available), where you’re completely private versus having walk into a bathroom that has both urinals and stalls, and I have to talk past a bunch of men doing business, while heading for a stall. I’ve never seen a unisex bathroom in any church building that’s designed to be used by several people of either gender at the same time. Have you? (And I’m not talking about people choosing to share a bathroom that was designed for one person).

  6. 6Jenn R.on 17 Sep 2008 at 4:59 pm

    Thank you for advising us on these issues that we may have to face if prop 8 isn’t won. It scares me extremely that these things may be taken into action. especially the fact that a church can be sued for not allowing gay marriages to be conducted in the building. I am an LDS and i am working with the church for protectmarriage.com and doing everything i can to protect the sacredness of marriage, and the fact that i am engaged and want to protect that right.

  7. 7admin3on 17 Sep 2008 at 5:56 pm

    Hopefully the discussion here has calmed some of your fears, Jenn R. The points of discussion issued by Prop 8 supporters are designed to bring out fears of the unknown. Preying on fears of voters is not very nice, but it is effective in American politics where issues are reduced to sound bites and bullet points. If we take a moment to shed some light on the darkness of fear, though, some of the things that appear to be scary monsters coming out of closets are, in fact, just cold shadows that melt away under the warmth of the sun’s rays.

    In the case of lawsuits over marriages, the place where a lesbian couple wanted to marry in New Jersey was not actually inside a church building, or even on church property as Mormons would first imagine. The New Jersey property was much more akin to a public square than a churchyard.

    As I’m sure you’ve noticed, people can sue anyone for anything, but the important thing to remember is whether the courts will say that the suits are validly brought in the first place. LDS church buildings, and especially temples, are not rented out for public services like the property in New Jersey was, so if someone tried to sue on those same grounds (of public accommodation), they’d have a hard time proving their case in court.

    The government doesn’t tell bishops or temple sealers that they must wed any couple who comes to them asking for marital rights.

  8. 8Thomason 23 Sep 2008 at 9:05 am

    The consequences listed here are exaggerated, of course. I just want to say that I think it’s a shame that we are wasting so much money on this matter when the millions of dollars that church members have contributed thus far could have been used for much better causes.

  9. 9Kengo Biddleson 10 Oct 2008 at 3:11 pm

    This whole issue leaves me conflicted. I’m glad to see this sort of “debunking” come up, because I’ve seen one of the original e-mails, and the fear-mongering, half-truths just make me physically ill.

    Thanks for this post!

  10. 10Scoton 10 Oct 2008 at 4:26 pm

    Thank you much for disseminating the facts.

  11. 11Dianaon 13 Oct 2008 at 9:08 pm

    I really appreciate this posting with the legal information. Sometimes it’s so difficult to get past the ambiguities that both sides spew.

  12. 12Cateon 21 Oct 2008 at 12:57 am

    I just wanted to say thank you for creating this site. You’ve responded to all of the issues very logically and diplomatically, and I’ve found your explanations to be extremely helpful. Thanks again!

  13. 13robon 26 Oct 2008 at 1:46 pm

    If I hear one more thing on (preparation H )
    I think i,m going to scream. It’s even a hot topic in my priesthood class.

    Sincerely :

    Going Mad In St. George UT

  14. 14Chino Blancoon 27 Oct 2008 at 12:43 am

    I’m currently working on a document titled “Six Consequences for Religious Freedom if Proposition 8 Passes” and am looking for help crafting some pithily worded consequences.

    If you’ve got the time or inclination, your input would be greatly appreciated.

  15. 15Nicole Gon 11 Nov 2008 at 3:19 am

    Thank you for the article clearing things up so much. I am sad to see it had little effect on the extremist right of Christianity, but exremists have to justify their views by disregarding anything to the contrary of their views, and accepting all lies, half truths, and fear mongering as all out doctrine.

  16. 16Josion 14 Nov 2008 at 7:43 am

    Thank you so very much for the detailed description of what has really gotten people fired up, and how it can truly affect us. It’s my feeling that if people fear their religious rights will be infringed upon, that is the battle they should fight. Rather than take away someone else’s rights, work on protecting your own and spend your $$ in that direction. I think it’s a shame that this issue has become part of Sunday Worship–Gay marriage is nothing compared to the division we’ll create for ourselves by attacking other people’s viewpoints and making against Prop 8 people feel unwanted at church. The Church’s official statement reiterated that each member has the right to make up their own mind, but there has been a lack of that sentiment in the day to day members, and that it a tragedy.