Monday, October 13, 2008

Legal background on Prop 8 and consequences

I have attached three things to this post. The first is a memo in response to several documents circulating that claim to argue against information sent to LDS Church leaders about the Consequences if Prop 8 fails. The second is the actual response with links and supplemental research material on the topic, the third is a copy of the actual "Six Consequences" memo. I hope this info is helpful. All three are from the source and aren't from second hand sources. There is also a wealth of info at the newsroom at and

As a side, don't go to seeking info in favor of the measure, its been purchased by the NO group and is used to direct traffic there way. This is a really honest move. In addition we just received word that a group has been organized to remove signs from peoples yards. There is a website were you are supposed to turn in your Mormon Friends as being LDS is their name is listed as a contributor. Talk about and exercise in tolerance.


By now probably most of you seen a document circulating that attempts to refute the Six Consequences piece we are using to describe what could happen should Prop 8 fail. This anti Prop 8 document comes in different forms and supposedly from different sources. One apparent source is from LDS members who are opposed to Prop 8 because they believe the LDS Church is wrong. Another apparent source is from LDS members who claim to be in favor of Prop 8 but “believe” the Six Consequences are erroneous and not well grounded in the law.

Whatever the source the purpose is the same---to undercut YES on Prop 8 arguments and specifically the Six Consequences.

The Six Consequences literature we have been circulating has its origin and roots in the document found on the official LDS website. This document is entitled “The Divine Institution of Marriage.” What the opposition has been circulating attempts to undercut the legal concerns the Church expresses. Lest there be any misunderstanding, the Church’s legal concerns ( Six Consequences literature) have been vetted at the highest level and have taken into consideration the best legal advice possible.

The piece I have attached above, authored by William C. Duncan, spells out the legal opinions and precedents that undergird the Six Consequences literature. As you see fit please feel free to circulate the Duncan document.

Most people are rightfully leery of buying something just because the seller touts his or her personal religious activity. In California, right now, there are groups working to defeat Proposition 8, the proposed constitutional amendment that would protect the institution of marriage as the union of a man and a woman. Part of their sales pitch is their religious identity.

They feel the need to advertise this because their own church, The Church of Jesus Christ of Latter-day Saints, has officially announced its support for the common-sense measure that would reverse the actions of a bare majority of the California Supreme Court that ruled in May that a hitherto unknown and still unwritten provision of that state’s constitution required that marriage be redefined to include same-sex couples.

Most recently, an attorney and a group calling itself “Mormons for Marriage” have been attacking the idea that redefining marriage in California creates possible negative ramifications for religious liberty in this state. They have attempted to refute an anonymous document that lists some of these potential ramifications. They say the document misconstrues legal precedents and that, actually, there is no reason to worry that churches and religious believers will be harmed in any way if California redefines marriage.

Anyone can read the LDS Church’s official statement on the issue, “The Divine Institution of Marriage,” published on August 13, 2008 and available on the Church’s website [link:] for a careful and persuasive examination of this question that concludes that the redefinition of marriage does bode ill for religious liberty. Interestingly, one of the attacks cites to the Church statement to argue that the debate over marriage should be civil (a point on which all hopefully agree) but does not note this section.

In addition, eminent religious liberty scholars who have a variety of opinions on the subject of same-sex marriage all agree that a conflict between the state and religious organizations and believers is an inevitable result of redefining marriage [link:]. How that conflict will work out may be a matter of debate but its existence is widely understood to be a given.

The California Supreme Court itself has made it abundantly clear that it does not think the Federal or State Constitutions provide a religious exemption to laws mandating identical treatment of same-sex couples or gay and lesbian individuals. In a recent, unanimous, opinion to this effect, the court said a doctor could not invoke his religious beliefs in a lawsuit brought against him because he did not provide an artificial insemination procedure to a woman in a same-sex couple. See North Coast Women’s Care Medical Group v. San Diego Superior Court, 81 Cal. Rptr. 3d 708 (Cal. 2008). [link:] In its opinion, the court said that even under the legal standard most protective of religious liberty the doctor would lose because the state had a compelling interest in requiring identical treatment of homosexuals. One judge wrote a separate opinion agreeing with the result and identifying the court’s
same-sex marriage decision as the authority for the proposition that every law must treat same-sex and opposite-sex couples exactly the same. Ibid. at 722 (opinion of Justice Baxter).

Since many churches’ religious beliefs do not allow them to provide employment, public accommodations, adoption services and other benefits to same-sex couples, it is not very hard to see that the court’s ruling sets up a serious quandary for believers.

Those who are now arguing that “all is well” for religious liberty say that it is not the redefinition of marriage that has caused these changes. In one way they are right, but their argument is also very misleading. It is true that states which have not redefined marriage have significantly interfered with religious liberty in advancing the cause of gay rights. They have relied on state statutes enacted by legislatures. These statutes, though, could be amended to make exceptions for religious groups. When the court redefines marriage, however, it makes the issue a constitutional matter and the court interpretation will trump any statutory exemption and might, as the California Supreme Court ruled, even outweigh other constitutional rights like religious freedom.

This is what the U.S. Supreme Court held in a famous case brought to remove the tax exemption of a religious college, Bob Jones University, which at the time forbade interracial dating. The government argued successfully in that case that the university should have its tax exemption revoked because the government’s policy of ending racial discrimination outweighed any other consideration. See Bob Jones University v. U.S., 461 U.S. 574 (1983) [link:]

It is common sense to most of us that racial discrimination is wrong and that a belief in marriage as the union of a man and a woman is a different matter. When the California Supreme Court ruled that marriage had to be redefined, however, they turned the issue of marriage into a civil rights issue and gave official government endorsement to the idea that those who believe in husband/wife marriage are bigots. The Bob Jones case and many other laws teach us that the law does not tolerate those it considers to be bigots.

Proposition 8 would overrule the California Supreme Court’s holding about marriage and allow those who believe in marriage to continue that belief without the official stigma of being considered bigots.

The marriage decision will have effects beyond religious liberty. One of the most obvious is that it requires schools to teach students of every age that there is no difference between marriage between a husband and wife and between same-sex couples. California law now requires that students in public schools from kindergarten on must be taught about “Family health and child development, including the legal and financial aspects and responsibilities of marriage and parenthood.” California Education Code 51890 [link:] Now that marriage has been officially redefined, any discussion of marriage must include discussions of same-sex marriage. Another provision of the law forbids discrimination in any school program on the basis of “sexual orientation” which reinforces this policy. California Education Code 200 [link:]

This is not a hypothetical concern. In Massachusetts, the only other state to redefine marriage, this exact situation has arisen. Parents who objected to pro-gay curriculum at their children’s elementary school lost their lawsuit seeking an injunction to exempt their children from the material, in part because a federal court said the public schools “have an interest in promoting tolerance, including for the children (and parents) of gay marriages.” See Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008). [link:]

There are other religious liberty concerns as well. In Canada, where marriage has been redefined, a Knights of Columbus hall in British Columbia was fined for canceling a reception for a same-sex couple’s wedding. See Chymyshyn v. Knights of Columbus, 2005 BCHRT 544 (2005). [link:] The list could go on.

These concerns do not exhaust the potential harms to which Proposition 8 would respond.

When the California Supreme Court redefined marriage, they did so not only for the small group who might benefit from the change but for every citizen of the State of California. This change means that the law of California now strongly endorses three ideas: men and women are essentially interchangeable, children do not need a mother and father and those who disagree are bigots.

In reality, every healthy human society, across time and cultures, has had some kind of marriage institution to encourage those who might create children to take responsibility for those children and for each other. Marriage is fundamentally about children’s needs, not adult desires.

Our society owes children the opportunity, whenever possible, to know and develop a meaningful bond with their own mother and father. Marriage between a man and a woman is the best way to provide this opportunity.

California law now creates intentionally motherless or fatherless families where children will not experience the unique contributions of at least one of their parents.

Decades of social science research has effectively demonstrated that the best arrangement for children’s well being is to be raised by their own mother and father who are married to each other. Even married couples that do not have children promote society’s concern for children by providing an example to those that do and, by observing their marriage vows, preventing the creation of other motherless or fatherless homes.

Proposition 8 is not about taking people’s rights away. It is a simple way to protect marriage. It is also the last chance California voters may have to get their say on this matter.

William Duncan is the director of the Marriage Law Foundation. The views expressed in this article do not necessarily reflect the official position of the Protect Marriage campaign in California or of The Church of Jesus Christ of Latter-day Saints.

Six Consequences the Coalition Has Identified If Proposition 8 Fails

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 already requires that health education classes instruct children about marriage. (§51890)

Therefore, unless Proposition 8 passes, children will be taught that marriage is 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.

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. Ask whether your pastor, priest, minister, bishop, or rabbi is ready to perform such marriages in your chapels and sanctuaries.

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.

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.

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 may not say: “traditional marriage,” or “family values” because, after the same-sex marriage case, it is “hate speech.”

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 now 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.


Michael Scott said...

This is a very insightful article, thank you for getting the facts out on this issue! I appreciate the links. I hate it when people just come up with their own ideas and present it as fact. Thank you!
Michael Scott
San Diego, Ca

Anonymous said...

I'm wondering how you feel about the civil vs. religious aspects of marriage.

More specifically: Would you support the end of civil legal benefits being granted to male-female marriages in the United States order to keep marriage from being something that violates the equal protection clause of the Constitution?

Scott said...

I think that part of the problem is that there are different opinions of what "freedom of religion" actually means.

I cannot believe that there will ever come a time when members of a religion are not allowed to believe in the doctrines of that religion.

I don't believe that there will ever come a time when leaders of a religion are not allowed to teach the doctrines of that religion to their followers.

I don't believe that there will ever come a time when religions are prevented from proselyting and promoting their beliefs to any who are willing to listen.

All of those religious freedoms are, I believe, well established and protected by the Constitution and guarded by the courts.

As we move into the examples that are used in "six consequences" and other documents, though, we're no longer talking about personal beliefs. We're talking about treating one person differently than another based on our religious beliefs. That's where things get much more hazy, and where there are cases where the courts have decided in favor of the individual who has been treated differently or discriminated against.

Depending on the situation, my personal views might fall on either side when things are this gray.

In the case of the fertility clinic, I believe that the courts judged correctly. A medical doctor should be expected to provide his services to all, regardless of his personal feelings toward the potential patient.

In the case of the wedding photographer, I think that perhaps things aren't so clear-cut. Photography and medicine are different disciplines and I'm not sure that people involved in the former should be held to the same standards of ethics as those involved in the latter.

If the "religious freedom" argument was restricted to: "If Prop 8 passes the courts will occasionally decide against those who cite religious beliefs as a reason for treating gay people differently than straight people" I would accept that as an accurate statement.

But I think that statements like: "It is not just wild and crazy to suggest that there could be sanctions against the teachings of our doctrine because we focus on marriage between a man and a woman" have no supporting evidence and no credibility.

Alan said...

I respect your vigorous defense of the Church's position on this issue. I would also like to clarify one point which I think you have misinterpreted. My remarks are made in complete good faith and I hope with the properly respectful tone.

You stated that in North Coast Women's Care v. San Diego Superior Court (the case regarding artificial insemination for a lesbian couple) California Supreme Court Justice Baxter “wrote a separate opinion agreeing with the result and identifying the court’s same-sex marriage decision as the authority for the proposition that every law must treat same-sex and opposite-sex couples exactly the same. Ibid. at 722 (opinion of Justice Baxter).”

Justice Baxter's exact words in his concurring opinion in North Coast Women's Care were “With respect to the application of [the religious freedom clause] of the California Constitution to this issue, I do not necessarily believe the state has a compelling interest in eradicating every difference in treatment based on sexual orientation (cf. In re Marriage Cases (2008) 43 Cal.4th 757, 875-877 (conc. & dis. opn. of Baxter, J.) [sexual orientation is not suspect classification; statutory definition of marriage as between man and woman satisfies rational basis test]).”

While Justice Baxter agreed with some of the majority's interpretations of certain statutes in the same-sex marriage decision, ultimately he dissented from their final ruling which found no rational basis in the state constitution for denying same-sex couples the right to marry. That is why his opinion is entitled “concurring in part and dissenting in part.” Put in simpler terms, he disagreed with allowing same-sex couples to marry and if it had been up to him, he would have ruled the other way.

Federal and state law allow the state to override individual exercises of religious freedom only when there is a “compelling state interest” in doing so. Please note carefully what Justice Baxter is saying. He does not believe that under the religious freedom clause of California's constitution, California has a “compelling state interest” in erasing every difference in treatment based on sexual orientation.

That means he thinks gender-based distinctions should be preserved, not erased, and that any California state interest in going the other way is not sufficient to override the religious freedom clause of California's constitution. Thus, under Justice Baxter's rule, the exercise of religious freedom would be sufficient grounds to preserve gender-based distinctions and keep “marriage” solely between a man and a woman.

In sum, Justice Baxter did not identify “the court's same-sex marriage decision as the authority for the proposition that every law must treat same-sex and opposite-sex couples exactly the same.” In fact, he did exactly the opposite. His statement was narrowly drawn and limited only to the question of whether religious freedom must always yield to a state interest in erasing gender-based distinctions. His answer was “no.” I am puzzled as to how this focused and negative answer to a narrow question could be interpreted as carte blanche “for the proposition that every law must treat same-sex and opposite-sex couples exactly the same.”

It appears you are relying on sources which have not thoroughly examined the actual legal precedent or thought through the analyses. This will make your readers wonder what other points in the precedents you cite may have been similarly misconstrued. I respect the vigor of your defense of Proposition 8, but misinterpretation in argument does not really serve the cause. You may wish to look more closely at precedent for any future posts over the next three weeks.

Scott said...

Would you support the end of civil legal benefits being granted to male-female marriages in the United States order to keep marriage from being something that violates the equal protection clause of the Constitution?

I don't know if this was addressed to me or to A CROW'S VIEW, but here's my opinion, if it matters:

I've said in other comments on other blogs that the best compromise would be to get government out of marriage entirely, and call all government-sanctioned partnerships by a different name ("civil union", "domestic partnership", whatever). All of the legal benefits and rights that are currently offered exclusively to married couples would instead be offered exclusively to state-sanctioned civil unions.

A couple (regardless of gender) could choose to only be "civil unioned", in which case they would receive all of the tax benefits, inheritance rights, etc., etc. that come with such a union, but they would not technically be "married" (according to the official definition--they would of course be free to call their relationship anything that they wanted to call it).

A couple could also choose to be "married" according to the traditions of whatever religion they subscribed to. Since there are churches that currently perform same-sex marriages, this option would be open to same-sex couples, but only through a limited subset of religions, as most would likely continue to consider marriage defined as being between a man and a woman. The couple receive whatever benefits their religion provides to married people (i.e. the right to have sex without it being considered sinful, etc.), but their union would not be recognized by the state and they would not receive the legal benefits and protections that the state currently grants to married couples.

Or, of course, a couple could choose to marry in their church AND be joined in a civil union, in which case they would have all of the benefits of both arrangements.

It's been said that compromise is the art of making sure that nobody gets what they want, and I'm sure that the solution I've just discussed would not satisfy everyone. Some will argue that marriage and special rights are inseparably linked and that to disassociate the two is contrary to centuries of historical tradition. On the other side, some will argue that they should not be expected to settle for anything less than what every straight person is allowed, and that accepting an arrangement in which the majority of the country's religions prohibit their "marriage" would be settling for second-class status.

I expect that any proposal similar to what I've outlined would face more obstacles and bigger hurdles than any ballot initiative, legislative bill or Supreme Court case in the fight for same-sex marriage has faced so far. I think it's far more likely that same-sex marriage will eventually become legally acceptable nationwide than that such a system would ever be put in place.

ms. lee of the lemon drops said...

i have a friend who worked with the lawyer who wrote the article discussing the 6 reasons. What he says is true, but he also fails to discuss that these things could still happen (i've had many discussions with my friend). Regardless, I think the wording has been changed on websites.

Defining marriage as between one man and one woman is not taking away anyone's rights. The definition simply distinguishes a union that is biologically capable of producing its own children. Whether a married couple has children or not, I feel like this deserves a separate name--even the potential is kind of a miracle.

Actually this definition can be seen as the ultimate expression of equality our society has to offer: it takes one man and one woman. One could see a lesbian union as a marginalization of men, or a homosexual union as a marginalization of women.

Equality is especially important when it comes to raising children. Children deserve/need a father and a mother. Neither parent should be marginalized.

Yes, many children are already growing up in single-parent homes. Prop 8 should be a reminder to everyone that as a society we need to assist and strengthen families as much as possible. Really, as a society we should be most concerned with the success and health of our families.

peace out.

ms. lee of the lemon drops said...

interesting articles here:

Superstar said...

In the example of the adoption agencies, the LDS Church is already open to potential litigation based on the church's strict requirements.

Not even all LDS people can adopt from LDS Family Services because their requirements are stringent. They always discriminate against single parents adopting, even though most secular adoption agencies allow single women to adopt children, or even single men to do the same.

If discrimination based on religious belief means they'll be shut down in California, then even without gay marriage in California the church's adoption program is open to lawsuit and removal if they don't choose to adopt to all people.

Scott said...

The definition simply distinguishes a union that is biologically capable of producing its own children.

This is a more restrictive definition than the one that Prop 8 would make official. If we define marriage this specifically, then infertility and menopause would "un-marry" people on a regular basis. Heck, by this definition, my wife and I ceased to be married a couple of weeks ago when I got a vasectomy. (Our relationship is no longer "biologically capable of producing its own children").

In the example of the adoption agencies, the LDS Church is already open to potential litigation based on the church's strict requirements.

We need to remember that EVERYONE is "open to potential litigation"--everyone can be sued by someone with a grudge against them. The question is whether or not the suit would hold up in court. Catholic Charities in Boston does not give us any legal precedent to base an opinion on, because there was never any litigation--it never went to court.

Furthermore, Catholic Charities was at least in part a state-funded organization, and in accepting the state's money it became obligated to abide by the state's guidelines. LDS Family Services is (as far as I know) funded entirely by the Church and is an entirely private organization, and therefore has a lot more leeway in its right to discriminate based on religious beliefs. There is absolutely no evidence that a church-run, privately-owned adoption placement agency would be forced to operate in a manner contrary to its beliefs.