Lies about Prop 8, Part II: Antidiscrimination laws

This post continues a series on incorrect information being circulated about California’s Proposition 8. I previously blogged about religious freedom issues — that is, whether churches would be forced to marry gay couples.

A second major category of lies about Prop 8 relates to antidiscrimination laws. For instance, one widely circulated document lists as various “consequences” if Prop 8 does not pass: “photographers cannot now refuse to photograph gay marriages, doctors cannot now refuse to perform artificial insemination of gays even given other willing doctors.”


The claim is in part based on actual facts. It’s true that there was a case in New Mexico involving a photographer who refused to photograph a civil union; and it’s also true that there was a case involving doctors who were unwilling to perform artificial insemination for a lesbian couple.

The problem is, that these are claims that come from anti-discrimination law, not from Proposition 8 or the Marriage Cases opinion. And regardless of whether Prop 8 passes or fails, those antidiscrimination laws will not change.

What are those laws? Let’s take a look:

Cal. Civ. Code. 51(b): All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

Cal. Civ. Code 51.5(a): No business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or of the person’s partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers, or customers, because the person is perceived to have one or more of those characteristics, or because the person is associated with a person who has, or is perceived to have, any of those characteristics.

Thus, it’s legally incorrect to claim that businesses in California cannot discriminate against gays and lesbians because of the Marriage Cases opinion. In fact, businesses in California cannot discriminate against gays and lesbians because of state antidiscrimination law. It is _that_ — not Marriage Cases — which requires doctors to offer their services to lesbian couples. (Note that the infamous wedding-photographer case happened in New Mexico, which is not a gay marriage state at all.)

A common claim is that Catholic Charities was forced to stop doing adoptions after Massachusett’s gay marriage decision. This claim is overwrought in its details — Catholic Charities voluntarily stopped adoptions, and was not forced by any state agency, but it is true that Catholic Charities was under investigation for state law violation. However, that investigation dates back to 2000 — four years prior to Goodridge. It is misleading to imply a causal connection between Goodridge, and Catholic Charities’s decision to stop adoptions because of the ongoing state investigation and their unwillingness to comply with state antidiscrimination law.

It’s true that there are some fascinating theoretical questions about the intersections of religion, antidiscrimination law, associational rights, and free speech. There are tensions and competing concerns here, and I don’t mean to claim at all that the current amount of protection given to religious individuals is optimal. For instance, it is entirely in bounds to make the argument, “religious individuals _should not_ have to photograph gay weddings, as this would infringe on their free speech and/or free exercise rights.” The interaction of the competing concerns is complicated, and I’m taking no substantive position on them in this post. Antidiscrimination laws and their applications are sometimes controversial.

However, as a descriptive matter, it is very misleading to point to some application of antidiscrimination law, and then say, “this is what _Marriage Cases_ leads to” or “this is what happens if Prop 8 fails.”

And, just to be clear, this series is examining _legal_ claims about Prop 8. I’m not suggesting that social, moral, ethical, or religious arguments can’t be made in favor of the proposition. (And all of those types of arguments could also be used to criticize Marriage Cases, as well as judicial-role arguments.) We’re just looking at the use of incorrect legal claims; that slice alone gives more than enough material for multiple blog posts.

(And yes, I’m aware that Lavender Law, Morris Thurston, and others have also done a good job of refuting incorrect claims. I guess I’m just late to the party.)

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8 Responses

  1. Quidpro says:

    Professor Wenger: If homosexual marriage is upheld in California, will that not be a factor in how California courts interpret future cases under the state’s anti-discrimination laws? Is such a concern a legitimate factor to consider in voting on Prop. 8?

  2. Guy Murray says:

    Kaimi,

    What the marriage cases will do, if not overturned at the ballot box is to arm the genderless marriage advocates with greater constitutional protections than what currently exist in CA’s Unruh Act. As you know, the CA supreme court has created a new fundamental right–genderless marriage. And, in the same breath created a new constitutionally protected class, sexual orientation, to enjoy that new fundamental right.

    Armed with those new constitutional protections and rights, the genderless marriage proponents are well positioned to further press legal arguments that may very well have the potential impacts described in the document which you categorize as “lies.” There is a reasonable legal argument to be made here.

  3. Kaimi says:

    Guy,

    The Marriage Cases established that sexual orientation is a protected class in California.

    Contrary to your assertion, Prop 8 does not affect that analysis. Prop 8 simply states that marriage is reserved to opposite sex couples.

    I don’t see how Prop 8 affects the constitutional status of gays and lesbians, except in the area of marriage.

    So, it may be the case that the Marriage Cases’ holding that sexual orientation is a protected class, will affect Unruh litigation. That seems quite possible.

    But Prop 8 doesn’t change that any.

    Now, if Prop 8 said, “sexual orientation shall not be a protected class under Cal constitutional law” — that could have the effect you suggest. But Prop 8 doesn’t say that.

  4. Guy Murray says:

    Kaimi,

    That’s what I was trying to convey in my comment. If Prop 8 does not pass, then genderless marriage advocates have even greater constitutional weaponry in their legal arsenal.

    I agree with you Prop 8 does not address anything other than the definition of marriage–which frankly may be problematic if it does pass– I don’t know. But, if Prop. 8 does not pass, all I’m saying is that there is a legitimate argument that “gay rights” and religious liberties will clash in the future. And, the reason for that will be the stronger legal arguments, i.e., fundamental right, and protected class to further their political agenda–(and in my opinion) at the expense of some religious liberty.

    Do you disagree?

  5. dobe gulia says:

    Kaimi: I am sympathetic to gay marriage, but I don’t understand your argument re Prop 8 not being about the protected class — and therefore that claims of its proponents are “lies”.

    So, the proponents think that the current state of affairs is just terrible. They introduced a weak proposition that, if passes, is not even close to curing the full spectrum of terrible (in their view) things. But the prop might weaken one element of that “terrible” bundle. And you say, because the proposition doesn’t undermine the entire “terrible” bundle, it’s clearly a “lie” to say that it will help the opponents of gay rights?

    As I see it, the only misstatement that the proponents make is that if Prop 8 passes, wedding photographers and docs will be free to deny services to gays. This is likely an overstatement of the prop’s power. But how is this a “lie” of a sort that should concern you? If the proponents have chosen to present the prop as something tougher than what it is, they are making their own job harder — because they lose people who would have taken the softer rule, but not the harsher one, while not gaining anyone from the opposite side (the people who would like the harsher rule will not vote against the prop just because it’s not harsh enough). So, why are you upset?

    Also, I don’t understand why it should matter what the exact source of CA’s antidiscrimination law is. Doesn’t a proposition override whatever the source there is? I thought (might be mistaken) that CA propositions take precedence over both statutes and judge-made law. Not so?

  6. Anohn says:

    Your posts on this have been a real public service. As the L.A. Times puts it, “That truth would never sell in tolerant, live-and-let-live California, and so it has been hidden behind a series of misleading half-truths. Once the sleight of hand is revealed, though, the campaign’s illusions fall away.”

  7. Kaimi says:

    Dobe,

    If the prop addressed antidiscrim law, it certainly could override it. But it doesn’t address it at all.

    That is, the prop says, “Only marriage between a man and a woman is valid or recognized in California.” This doesn’t affect the Unruh Act, which prohibits businesses from discriminating on the basis of sexual orientation.

    As for why this lie matters — instances of anti-discrimination law application are being put forth as problems that must be fixed by Prop 8. That depiction is false. Whatever one thinks of Unruh – whether it’s a good thing, a bad, mixed, whatever – it won’t be changed by Prop 8.

    Guy,

    But Prop 8 _doesn’t change_ the constitutional arguments that gay rights advocates have.

    You write,

    “But, if Prop. 8 does not pass, all I’m saying is that there is a legitimate argument that “gay rights” and religious liberties will clash in the future.”

    I think that’s wrong. A correct statement would be, _whether or not_ Prop 8 passes, there’s a legitimate possibility that gay rights and religious liberty will clash.

    Prop 8 does not change Unruh. It does not change the protected status of sexual orientation. The horse has left the barn. Gay rights are already written into law.

    There are legitimate questions about the intersection of religious liberty, associational rights, and individual freedoms (including gay rights). These values are, to some extent, in tension, and clashes have resulted and will continue.

    It’s misleading to suggest that Prop 8 will prevent this clash from occurring.