Lies about Prop 8, Part I

Wedding RingsJaya’s post examines the issue on a micro level — should a Proposition 8 opponent allow a misperception to go uncorrected, in order to support their political goals?

But really, the same story plays out on a much larger scale. This is not limited to either camp; I’m sure that lies have happened on both sides of the debate. Politics brings out the worst in many people. However, one thing that has particularly bothered me as a Californian this election season has been the systematic dissemination of lies and misinformation by Prop 8 proponents.

This election has seen a number of specific, legal claims made about Prop 8 and gay marriage:

Churches will be closed. Ministers will be jailed. Gay marriage will be taught to kindergarteners as “just as good as traditional marriage.” Adoption agencies will be forced to kowtow to gay couples. Churches will be forced to perform gay weddings, contrary to their doctrine. Photographers will be forced to chronicle gay weddings. Churches will lose their tax exemptions. I’ve heard every one of these (often in multiple iterations) from friends and associates who support the proposition. And to top it off, of course, cute little girls will be sent home with copies of _King and King_. “Think it can’t happen?,” asks one commercial. “Think again!”

It is true, of course, that the _Marriage Cases_ opinion had some legal effects, and that Prop 8, if it passes, will have some legal effects as well. That said, it seems clear that a number of greatly exaggerated, misleading, or downright dishonest legal claims are being advanced by Prop 8 proponents. This is particularly disappointing since some of these arguments are being made by individuals linked to religious organizations which have a stated institutional commitment to honesty and integrity as a religious value.


Now, I have no doubt that a number of laypeople make these arguments in good faith. Still, they are ultimately making legal arguments, and these arguments come from somewhere. It appears that they come from lawyers who support the proposition, and who are willing to mislead in order to advance their political views. And these arguments are circulated by often well-meaning, but underinformed laypeople — laypeople who will be voting next week.

Let’s look at a few of these claims. We’ll start with the religious freedom claims.

These claims are certainly attention grabbers. It would be reasonable to be concerned if the Marriage Cases opinion actually forced churches to change their doctrines. But nothing in the _Marriage Cases_ decision will result in forcing churches to perform same-sex marriages in their churches or temples. In fact, the court opinion itself says exactly the opposite. The court states directly that Section 4 of the California Constitution would prevent that from happening. The _Marriage Cases_ majority opinion actually states:

“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.)”

This statement is linked to the court’s holding, too, so it won’t easily change. That is, it is partially _because_ no church will be forced to perform same-sex marriages, that the court comes out the way it does; if it were otherwise, the court would have had to examine that interest, in its strict scrutiny analysis.

So the _Marriage Cases_ opinion does not force churches to perform same-sex weddings. Nor will it result in churches being shut down if they oppose same sex marriage. Thus, claims that the decision will close churches or force priests or bishops to perform gay weddings, are flat-out wrong. That claim is one of the more pernicious lies about Prop 8.

Up Next: Antidiscrimination, Hate Speech, Taxes, and Education

Image: Wikicommons

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6 Responses

  1. californian says:

    I am voting no on Prop 8, but have a slightly different take than its main supporters take in public. If Prop 8 is defeated, then it is my hope and my expectation that same sex marriage will indeed be taught in the schools in all sorts of ways. Not in the sense of overtly indoctrinating 5 year olds. But all sorts of curricular materials have all sorts of references to marriage and to married couples as such, and I hope that the California Supreme Court decision in Marriage Cases, the Assembly’s banning of discrimination on the basis of orientation, and the (let’s hope) defeat of Prop 8 will lead to lots of references in school to the fact of same sex marriage. In fact, I expect that if Prop 8 is defeated there will be vigorous efforts to make sure that curricular materials do indeed reflect the facts on the street.

    This is not something I say out loud when discussing Prop 8 with proponents. But I certainly don’t deny my expectation of the change its defeat should have on curricular materials.

  2. Brett Bellmore says:

    I don’t think Prop 8 will actually cause those things directly. But… As a libertarian I happen to think there’s this huge conceptual gap between requiring the government to not discriminate on some basis, and the government requiring the private sector to not discriminate.

    And it’s a huge conceptual gap that the civil rights community does not respect. You could ask the Boy Scouts about that…

    So, while Prop 8 will not directly enact that list of horribles, it’s part of the trajectory leading to them, a trajectory I fully expect will be followed.

    Fortunately, not living in California, I don’t have to balance a moderately good against the evils I expect will eventually be brought about by it’s supporters.

  3. Nate Oman says:

    Kaimi: Aren’t many of these claims put forward not as legal implcations of In re Marriage Cases per se, but rather as slippery slope arguments? Of course, one can dismiss them as slippery slope fallacies, but it is worth remembering that there are lots of slippery slope arguments that are pretty respectable in law prof circles, e.g. If they ban the speech of the Nazis in Skokie, then they can ban your speech, If we don’t keep the police from taking short cuts with the rights of criminals, they will take short cuts with the rights of non-criminals, etc. etc. Of course, this isn’t to say that any particular slippery slope argument is valid, only to say that they needn’t be dismissed out of hand. It seems to me that one of the reasons that opponents of Prop 8 want same-sex marriage is preciely because they believe that it will help to change public attitudes for the better. I think that many opponents concede the power of same-sex marriage to change public attitudes, but fear that they are likely to be targeted and harrassed in the future as a result of those changes.

  4. Kaimi says:

    Californian,

    I think that’s not an uncommon position among Prop 8 opponents. (And neither is the silence about it.)

    I do think that if the proposition fails, same-sex marriage will become a part of many or most schools’ sex-ed curriculum. I also think that this will result in clarification of Cal’s rather strong opt-out rights; and that ultimately most schools will offer broad opt-out ability in this area. More detail in an upcoming post.

    Brent,

    I think it’s not unlikely that gay rights will continue to expand in California. And to the extent that they do, this could result in clashes with associational and religious freedom rights.

    Still, that’s a separate argument. Put simply, the statement “if Prop 8 fails, churches will be shut down” is a direct statement of legal consequence. And it’s wrong.

    It would be equally wrong to say, “if Prop 8 passes, gays and lesbians will be openly beaten up by vigilantes.” Yes, Prop 8 pushes in a specific direction; and should the community continue apace in that direction, that’s one possible outcome. But there is a lot of connect-the-dots to do before we get there.

    And really, I’m not so sure that rights will follow the trajectory that activists are saying. After all, the same Cal supreme court which handed down Marriage Cases — characterized as awful, activist, etc, — also handed down a victory for the Boy Scouts in their association rights case. (Remember? Prior to _Dale_?)

    Nate,

    I don’t have a problem with people making slippery slope arguments. Many do in this area. I may think these arguments are poorly reasoned in an individual case, but as a whole, there is nothing wrong with the logical structure, “X will cause changes that will eventually result in Y.”

    The problem is that such a high number of the claims made _aren’t_ slippery slope in the traditional sense, but are framed as direct statements of legal causation.

  5. Nate Oman says:

    Kaimi: I will defer to you on the specifics of the claims made by Prop 8 folks. I haven’t been following it closely, since I live in Virginia. On the other hand, I don’t think that it is unreasonable for conservative churchs to believe that entrenching same sex marriage in the law is likely to result in a shift in public attitudes that will result in greater hostility to the churches and their messages. Of course, one might nevertheless conclude that this is not a reason for supporting Prop 8. One might even conclude the opposition to Prop 8 is desireable precisely because it will produce such hostility. Nevertheless, the fears of religious conservatives are not without foundation, even if some of their more wild-eyed legal claims are false.

  6. ray says:

    There is more than slippery slope involved. If prop 8 passed then you would have people back in court demanding that churches marry them. The reason? My civil rights are being violated. The activist judiciary will again give them what they want and then millions of peoples religious rights will be trampelled in the mud. It is happening in Canada.