Morris Thurston, an active Mormon who received his undergraduate degree in political science from BYU and his law degree from Harvard Law School, recently critiqued the anonymously published list of talking points (frequently reported by supporters, as above) because they were false and misleading:
“Most of the arguments contained in “Six Consequences [the Coalition Has Identified if Proposition 8 Fails]” are either untrue or misleading
. The following commentary addresses those arguments and explains how they are based on misinterpretations of law and fact. My intent is to be of service in helping our Church avoid charges of using falsehoods to gain a political victory. Relying on deceptive arguments is not only contrary to gospel principles, but ultimately works against the very mission of the Church
.”http://www.noonprop8.com/downloads/Thurston-Memo.pdf1. Children in public schools will have to be taught that same-sex marriage is just as good as traditional marriage.
Response: This is untrue. California Education Code 51890 provides that “pupils will receive instruction to aid them in making decisions in matters of personal, family, and community health.” The focus is on health. The statute provides for community participation, including lectures by practicing professional health and safety personnel from the community. Things that are to be taught include, for example drug use and misuse, nutrition, exercise, diseases and disorders, environmental health and safety, as well as “family health and child development, including the legal and financial aspects and responsibilities of marriage and parenthood.”
Another section of the Education Code (51933) deals with comprehensive sexual health education and HIV/AIDS prevention. It provides that instruction shall be age appropriate and medically accurate, shall teach “respect for marriage and committed relationships,” and shall encourage a pupil to communicate with his or her parents about human sexuality.
Therefore, no provision of the Education Code requires any teacher to teach that same‐sex marriage is “just as good” as traditional marriage. Teachers are to teach respect for marriage and committed relationships, and Proposition 8 will not change this law.2. Churches may be sued over their tax exempt status if they refuse to allow same-sex marriage ceremonies in their religious buildings open to the public.
Response: This false “consequence” is based on the misrepresentation of a case in New Jersey involving an association affiliated with the Methodist Church. In considering that case, it is important to remember that New Jersey does not permit gay marriage, so that case had nothing to do with Proposition 8.
What was the New Jersey case about? The Ocean Grove Camp Meeting Association (OGCMA), a Methodist organization, had taken advantage of a New Jersey law granting a state property tax exemption for a pavilion in the seaside town of Ocean Grove that was dedicated for public use. Note that the case did not involve income tax exemptions and note that the purpose for giving the exemption in the first place was to reward organizations for opening their buildings and facilities for public use.
The property in question was a boardwalk pavilion open to the public. “Bands play there. Children skateboard through it. Tourists enjoy the shade. It’s even been used for debates and Civil War re‐enactments.”3 It was also available to be reserved for marriage ceremonies by people of any faith. Nevertheless, the OGCMA wanted to prohibit a gay commitment ceremony (not a marriage ceremony) from being held in the pavilion. The New Jersey real estate commission ruled that if OGCMA intended to claim a property tax exemption for a building open to the public, they could not discriminate. Seen in this light, it was a sensible ruling. Implicit in the ruling is that the group could discriminate if they ceased to claim a property tax exemption for a public facility. It is important to note that this ruling pertained only to the pavilion, which constituted a mere one percent of the property the OGCMA owned. The total amount of additional tax assessed was $200. The OGCMA continues to receive a property tax exemption for the remaining 99% of its property.
This case has nothing at all to do with any Mormon, Catholic or any other church’s chapel or sanctuary that is used for religious purposes. It has nothing to do with any church’s income tax exemption. To my knowledge, the Mormon Church has never sought to take advantage of a property tax exemption similar to the New Jersey exemption and likely never would.
The California Supreme Court ruling on gay marriage cannot have any federal tax consequences, and the Court so noted explicitly in its decision. The Supreme Court also noted that its ruling would not require any priest, rabbi or minister to perform gay marriages, which should be self‐evident because of the First Amendment’s guarantee of freedom of religion.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
Response: Another misrepresentation. To begin with, it should be noted that Catholic Charities in Boston was not forced to close its doors—indeed it is still very active. (See its website at http://www.ccab.org.) Rather, Cathol...ased providing
adoption service in Massachusetts. According to the Boston Globe, Catholic Charities elected to close its doors in protest over the legalization of gay marriage in Massachusetts and because it was reluctant to undertake a lawsuit that might be lost.
LDS Family Services still operates in Massachusetts, as it does in California. There are several differences between LDSFS and Catholic Charities. LDSFS does not take federal or state funds; Catholic Charities does. LDSFS facilitates only voluntary adoptions and permits the birth mother to approve the adoptive parents. Catholic Charities handled non‐voluntary adoptions (where the state seizes the children) and normally did not accommodate birth mother approval. Catholic Charities had contracts with the state and was, in effect, acting as an agent of the state. LDSFS does not. To date, LDS Family Services has never been forced to place any children
with a gay couple, and has never been sued for not doing so.
If this situation ever faces a legal challenge in California, it will not matter whether Proposition 8 passes because California already has on its books (and has for several years) laws granting domestic partners (homosexual and heterosexual) the same civil rights as married couples. This is a point that many people seem not to understand. Here is the language of just one California statute: “Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.”
Therefore, the passage or failure of Proposition 8 will have no effect on the placement of orphans with gay couples in California.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.
Response: This claim relates to an experience at Yeshiva University in New York. Gay students were eligible for University housing, but their partners were not able to join them because they did not have marriage certificates. It should be noted that Yeshiva University (despite its name) is chartered as a nonsectarian institution, enabling it to receive state and federal funding. The New York court found that Yeshiva was discriminating against the students based on their sexual orientation—not their marital status. The ruling was based on New York City non‐discrimination laws.
California’s existing non‐discrimination laws give all registered domestic partners, whether heterosexual or homosexual, the right of equal access to family housing. To date, however, no California private religious school has been forced to comply with this law. Neither the passage nor the failure of Proposition 8 will have any bearing on the law relating to family student housing in California.
The gay marriage problem will not arise at BYU and other Church universities because engaging in homosexual activity is a violation of the honor code and is a basis for expulsion from the University. These rules will not be overturned merely because California recognizes gay marriages, any more than they have been because Massachusetts, Canada and many European nations recognize them.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. A recent California court held that municipal employees my not say: “traditional marriage,” or “family values” because, after the same-sex marriage case, it is “hate speech.”
Response: Of course, anyone can be “sued” for anything, but no minister has been convicted of a crime in Canada or the United States for preaching against same‐sex marriages. The Owens case, on which this statement is based, was brought well before gay marriage was legal in Canada and did not involve a minister, but a private citizen. In that case, a man named Hugh Owens produced bumper stickers and took out an ad that depicted two stick figures holding hands, covered by a circle and a slash, along with a reference to a passage in Leviticus that says that a man engaging in homosexual activity “shall surely be put to death. Their blood shall be upon them.” The lower court ruled that this amounted to hate speech, but the decision was overturned on review. The current Canadian law on hate propaganda excludes any speech if it is spoken during a private conversation or if the person uttering the speech “is attempting in good faith to establish by argument an opinion on a religious subject.”10Thus, even ministers who preach against same‐sex marriages in Canada have no risk of legal liability or government fines.
This would never be an issue in the United States because we have far more liberal freedom of speech and religion laws than does Canada.11 There have been no hate speech lawsuits in Massachusetts, which has been a gay marriage state for four years.
The description of the recent California case is another fabrication. This case is Good News Employee Association v. Hicks, which was decided before the Supreme Court legalized gay marriages and so it, too, has nothing to do with Proposition 8. The
plaintiffs in that case were evangelical Christians (not homosexuals) who posted flyers around the offices of the Oakland Community and Economic Development Agency promoting their “Good News Association” and calling on those who read the flyer to
“preserve our workplace with integrity … with respect for the natural family, marriage and family values.” In other words, this group was promoting the idea of ridding their workplace of gay people—a blatantly homophobic message and highly offensive not
only to several gay people who worked there but to heterosexual co‐workers as well. The supervisors removed the flyers. The Good News people sued, claiming their rights of free speech were violated. The court found that the agency was entitled to eliminate the workplace disruption the flyers were causing and noted that there were any other ways for this group to promote their message without resorting to such offensive tactics.
This case does not hold that municipal employees are prohibited from saying “traditional marriage” or “family values” and it has nothing to do with gay marriage, or ministers preaching, or Proposition 8. Indeed, the court specifically found that there were many other ways for these people to get their message out without disrupting the workplace by creating an atmosphere of persecution.6. It will cost you money. This change in the definition of marriage will bring a cascade of lawsuits, including some already lost (e.g., photographers cannot now refuse to photograph gay marriages, doctors cannot refuse to perform artificial insemination of gays even given other willing doctors). Even if courts eventually find in favor of a defender of traditional marriage (highly improbable given today’s activist judges), think of the money – your money – that will be spent on such legal battles.
Response: The argument concerning cost is fallacious and calculated to engender fear. In actuality, the net fiscal effect of Proposition 8 will be an influx of revenue to California because of the anticipated increase in marriage ceremonies and the related boon to the economy. The change in the definition of marriage will not bring a “cascade of lawsuits” because heterosexual and homosexual registered domestic partners already have all the rights of married couples in California. None of the lawsuits alluded to in this paragraph has anything to do with gay marriage.
The wedding photographer case was in New Mexico, a state that has no gay marriage law. The medical doctor case was in California, but was based on our existing non‐discrimination laws and would not be affected one way or the other by the passage of Proposition 8.