October 10, 2008


Cleverly, the proponents of Prop. 8 are saying nothing about the direct rights of gay people who want to marry. Rather, they make three claims based on Prof. Richard Peterson of Pepperdine Law School’s analysis of the Marriage Cases. All are bogeymen:
  1. No one is going to be sued for their personal beliefs. People might be sued based on their actions. But the experience of Massachusetts is that in the four years since the Goodridge case, not a single person has been sued for voicing personal opposition to the idea of same-sex marriage.
  2. No churches are going to lose their tax exemptions based they refuse to officiate same-sex marriages. A church is free to agree to perform, or not, whatever ceremony it wishes. If a church becomes too heavily involved in politics, like, say, urging its parishioners to vote yes on Prop. 8, then it might lose its tax exemption, but a church urging its parishioners to vote no on Prop. 8 could and should suffer the same fate.
  3. Will gay marriage be taught in schools? That’s what Prof. Carpenter muses about the longest in his post. Of interest here is Education Code § 51933(b)(7), which says that “Instruction and materials shall teach respect for marriage and committed relationships.” This is inaccurate. Failure to pass Pro. 8 would leave sex education as a district-by-district sort of question. If a district elected to not have any sex education other than HIV/AIDS prevention (which is already mandated by law and unaffected by Prop. 8 or the Marriage Cases), then the school would not be required to say anything at all about same-sex marriages. If the school did provide sex education, then yes, it would have to treat same-sex marriages as equal to opposite-sex marriages. They would be free to note that some religious institutions do not recognize same-sex marriages and also free to point out the difference between civil and religious marriage, provided that in so doing they did not teach or promote religious doctrine. Parents who object to such instruction could withdraw their children from it at no academic penalty. What they cannot do, however, is reflect or promote bias against gay people – but then again, they couldn’t do that before the Marriage Cases, by way of Education Code § 220. None of this would apply to private schools.

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