Tuesday, November 11, 2008

Letter to the Editor About Anti-religious Bigotry by Prop. 8 Opponents

The aftermath of the passage of Proposition 8 has revealed that among the opponents of that initiative are anti-religious bigots who have no regard for the democratic process.

Thousands of opponents of Prop. 8 have shown themselves to be the political equivalent of thuggish sports fans who, when their team loses the game, proceed to beat up the opposing team. Except that Prop. 8 opponents lack the courage to take on everyone (including the 70% of black voters and 53% of Latino voters) who voted to preserve natural marriage, so they have focused their attacks upon those whose religious beliefs they despise. Their tantrums have not been limited to marching in the streets. They have also resorted to vandalizing and impeding access to places of worship. Via the Internet they have openly advocated physical violence against religious worshipers.

A bigot is defined as one who treats others with hatred and intolerance because they are members of a group (e.g., racial or religious) or because they hold an opposing opinion. The bigotry of Prop. 8 opponents is demonstrated by their hateful attacks upon groups of people whose sincerely held religious beliefs differ from their own. They intolerantly revile all Prop. 8 supporters as bigots and refuse to acknowledge that they are motivated by legitimate concerns over the harm – to society in general and to children in particular – that will flow from legally redefining marriage to include same-sex couples.

Everyone who values our constitutional system of deciding important social issues by the democratic process should be alarmed by a radical minority that will not hesitate to force its views upon the majority through violence and intimidation.

(Sent to a local newspaper but not published)

Sunday, November 2, 2008

Legal/Philosophical Support for Traditional Marriage

This distinguished Princeton professor's excellent address strongly supports traditional heterosexual marriage with a highly sophisticated legal and philosophical analysis. The first half covers abortion and the sanctity of human life. The second half covers the principles underlying traditional marriage and is more particularly relevant to Prop. 8.

Click here.

The speaker, Professor Robert P. George, is McCormick Professor of Jurisprudence at Princeton University, where he lectures on constitutional interpretation, civil liberties and philosophy of law. He also serves as the director of the James Madison Program in American Ideals and Institutions. He was educated at Swarthmore College (BA), Harvard Law School (JD), Harvard Divinity School (MTS), and New College, Oxford (DPhil). At Oxford he studied under John Finnis and Joseph Raz. Formerly, he served on the U.S. Commission on Civil Rights and as a fellow at the U.S. Supreme Court. He currently serves on the U.S. President's Council on Bioethics. He is a member of the Council on Foreign Relations. He serves on the editorial boards of Touchstone and First Things magazines, as well as several academic journals.

Monday, October 27, 2008

Who's Really Lying?

Opponents of Proposition 8 are spending millions of dollars on television commercials claiming that the Yes on 8 campaign is lying in ads that say same-sex marriage will be taught in public schools. However, a review of briefs filed with the federal court of appeal in Boston shows that the very same organizations who now dispute this statement actually fought in court to ensure that same-sex marriage would be taught in Massachusetts schools and to ensure that parents with moral objections to this instruction would not have a right to excuse their children from pro-homosexual indoctrination.

The Massachusetts History

As in California, same-sex marriage was legalized by a bare, 4-3 majority of the Massachusetts Supreme Court in 2003. The Lexington Massachusetts school district adopted a curriculum that included teaching children as young as kindergarten about same-sex marriage. The district refused to give parents prior notice of the instruction and refused to allow parents to excuse their children from the instruction, even though a Massachusetts statute required that parents be given notice and an opportunity to exempt their children from any curriculum that "primarily involves human sexual education or human sexuality issues" (Mass. Gen. Laws ch. 71, § 32A).

The parents sued the school district (Parker v. Hurley, 474 F. Supp. 2d 261 (D. Mass. 2007)) and argued that by forcing their children to be subjected to a curriculum that is contrary to their religious beliefs the district violated their constitutional right as parents to direct the moral training of their children and their right to the free exercise of their religion. The trial court dismissed their claims, relying in part on language in Massachusetts law that is very similar to California Education Code section 51933. [Section 51933 provides that sex education course content must teach “respect for marriage and committed relationships”; that “Instruction and materials shall be appropriate for use with pupils of all… sexual orientations”; and that “Instruction and materials may not reflect or promote bias against any person on the basis of any category protected by Section 220” (which includes sexual orientation).] Citing this statute, the court stated: “Massachusetts law prohibits discrimination in public schools based on sex or sexual orientation. It also requires that public school curricula encourage respect for all individuals regardless of, among other things, sexual orientation.... In view of the value to the community of preparing students to respect differences in their personal interactions with others and in their future participation in the political process, the conduct at issue in this case is rationally related to the goal of preparing them for citizenship.”

The parents appealed to the federal Court of Appeal (Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008)). Some of the very organizations that are now funding and driving the No on 8 campaign – and claiming that same-sex marriage will not be taught in California schools – filed briefs with the Court of Appeal in which they argued that same-sex marriage must be taught in the public schools and that parents are not entitled to receive prior notice of such instruction or to excuse their children from it. Their briefs show that the No on 8 campaign is deliberately deceiving California voters when it says gay marriage will not be taught in California public schools.


The Anti-Defamation League (ADL) is a leading member of the No on 8 campaign. The ADL’s Amicus Curiae Brief stated:
  • "In the Commonwealth of Massachusetts, where the right of same-sex couples to marry is protected under the state constitution, it is particularly important to teach children about families with gay parents." [p. 5]
  • "Diversity education is most effective when it begins during the students' formative years. The earlier diversity education occurs, the more likely it is that students will be able to educate their peers, thereby compounding the benefits of this instruction." [p. 3]


The Human Rights Campaign (HRC) has funneled over $2 million to No on 8, Equality for All, the main No on Proposition 8 campaign committee. HRC’s Amicus Curiae Brief stated:
  • "There is no constitutional principle grounded in either the First Amendment's free exercise clause or the right to direct the upbringing of one's children, which requires defendants to either remove the books now in issue - or to treat them as suspect by imposing an opt-out system." [pp. 1-2]
  • "In short, there can be no serious dispute that the books in issue are both age-appropriate and reflect the growing diversity of American families." [p. 9]
  • "Lexington's selection of the [three] books...for inclusion in its curriculum is firmly rooted in the long-recognized tradition of public schools as a place for disseminating the knowledge and information that helps to foster understanding between diverse groups and individuals for the overall benefit of society." [p. 13]


The Northern California Chapter of the ACLU has contributed $1,250,000 to No on 8, Equality for All. The ACLU Amicus Curiae Brief stated:
  • "Specifically, the parents in this case do not have a constitutional right to override the professional pedagogical judgment of the school with respect to the inclusion within the curriculum of the age-appropriate children's book...'King and King'." [p. 9]
  • "This court has astutely recognized that a broad right of a parent to opt a child out of a lesson would fatally compromise the ability of a school to provide a meaningful education, a conclusion that holds true regardless of the age of the child or the nature of the belief." [p. 18]
  • "First, a broad right of a parent to opt a child out of a lesson would subject a school to a staggering administrative burden...Second, in contravention of the axiom that 'the classroom is peculiarly the 'marketplace of ideas' [citations], a broad right of a parent to opt a child out of a lesson would chill discussion in the classroom...Third, the coming and goings of those children who have been opted out of lessons would be highly disruptive to the learning environment. Moreover, such comings and goings would fatally undermine the lessons that schools teach the other students." [pp. 22-23]
After considering the briefs of the parties to the case and of these organizations who are now leading sponsors of the No on 8 campaign, the Federal Court of Appeal held that parents do not have a right to excuse their children from instruction on same-sex marriage.

Prop. 8 Opponents v. Parental Rights

The National Center for Lesbian Rights (NCLR) is a coalition member of and major donor to the No on 8 campaign. The NCLR opposes the right of California parents to receive prior notice of instruction regarding same-sex marriage and to opt their children out of such instructions. The NCLR published a document entitled LGBT Legal Issues for School Attorneys that purports to advise school district attorneys regarding issues related to sexual orientation. This document states:
  • “State law explicitly provides that ‘instruction or materials that discuss gender, sexual orientation, or family life and do not discuss human reproductive organs and their functions’ is not subject to the parental notice and opt-out laws. California Education Code § 51932(b).”
  • “So long as these programs do not include sexually explicit content (i.e., discuss the human reproductive organs and their functions), parents are not entitled to prior notice and the opportunity to opt their children out.”


The opponents of Proposition 8 intend to insert same-sex marriage into our public school classrooms, and they will seek to nullify the rights of parents to direct the moral education of their own children. They desperately seek to conceal their plans by falsely accusing the Yes on 8 campaign of lying. Yet their briefs and published documents reveal their true intent, in their own words.

This article incorporates content provided by ProtectMarriage.com

Tuesday, October 21, 2008

Prop. 8 FAQs

Why not let same-sex couples marry? They’re not hurting anyone, are they?

The most fundamental purpose of marriage has always been to provide children with the optimal environment in which to grow up emotionally healthy and prepared to succeed in life as adults. Redefining marriage to include same-sex couples will hurt, first, children and, ultimately, our society as a whole.

Harm to Children. Boys and girls need both a male and a female parent in order to grow up as emotionally healthy, well rounded men and women. Boys learn how to be men from their fathers, while girls learn how to be women from their mothers. Both boys and girls learn how to relate with the opposite gender by relating with their parent of the opposite gender and by watching their father and mother relate with each other. Children raised by same-sex couples are deprived of these essential formative experiences. There is also abundant evidence that children who are not raised by their natural father and mother in a stable marriage have significantly higher rates of many social problems, including school failure or expulsion, drug abuse, criminal activity, physical and emotional health problems, poverty, unwed motherhood, and the breakup of their own marriages as adults.

Harm to Society. For many centuries and in all cultures, man-woman marriage has been the fundamental building block of a healthy society. Our society depends on stable, man-woman families to raise each new generation of children into healthy, well-rounded adults who are qualified and prepared to assume a responsible role in society. Children who are not raised by their married mother and father experience significantly higher rates of many social problems, including school failure or expulsion, drug abuse, criminal activity, physical and emotional health problems, poverty, unwed motherhood, and the breakup of their own marriages as adults. These problems negatively impact society as a whole in very significant ways.

Won’t Proposition 8 deprive same-sex couples of important legal rights?

No. On the contrary, failure to pass Proposition 8 will deprive millions of Californians of fundamental religious liberties.

Same-sex Legal Rights. Same-sex couples are free to live their lives as they choose, and California law already grants to same-sex couples all of the legal rights that can be obtained through marriage. Proposition 8 will not change any of that. The debate is not about the legal rights of same-sex couples. It is about whether four judges should be allowed to cancel out the will of an overwhelming majority of California voters by changing the very nature and definition of marriage, and it is about the harmful effects of that change upon children and society.

Infringement of Religious Liberty. If same-sex marriage is given legal recognition, public schools in California will be required to teach all students that there is no difference between man-woman marriages and same-sex marriages. Schools will contradict and undermine parents who teach their children that homosexual behavior is morally wrong based upon their religious beliefs. In countries where same-sex marriage has been legally recognized, people who express their religious belief that homosexual behavior is immoral are being criminally prosecuted. There is also a possibility that a church that opposes same-sex marriage will be denied its tax-exempt status once same-sex marriage is legally recognized.

Friday, October 17, 2008

Permission Granted

I may not have made this clear, but by all means everyone is free to copy, use, and quote from the contents of my rebuttal to Morris Thurston's commentary. You can also send the URL:
to others via e-mail so they can access it easily.

Sunday, October 12, 2008

England's Same-sex Partnership Act becomes weapon

On the topic of bad consequences that flow from giving special legal recognition to same-sex relationships, watch this video about what happened in England after a 2004 law was passed granting same-sex couples all the rights of married couples.

Friday, October 10, 2008

Rebuttal to Thurston's "Commentary"

When an issue is as important as marriage, the discourse can easily become emotional, then irrational, and sometimes it goes downhill from there. There is much information being circulated against Proposition 8 that is misleading, erroneous, and downright deceptive. One example is a document that was written by an LDS lawyer named Morris Thurston entitled "Commentary on the Document 'Six Consequences...if Proposition 8 Fails.'"

The "Six Consequences" document, which is of unknown authorship, lists six undesirable outcomes that are likely to happen if Proposition 8 does not receive a majority of the votes on November 4. (Note that the "Six Consequences" document referred to in this post was not authored or endorsed by the official sponsor of Proposition 8. A better and more accurate version of the "Six Consequences" that is
endorsed by the official sponsor of Proposition 8 can be found here).

Thurston's commentary purports to rebut numerous "falsehoods" contained in the document. Because Thurston identifies himself as "an adjunct law professor at BYU Law School," many people who read his commentary assume he knows what he's talking about and that what he writes must be true.

I am a Latter-day Saint attorney, and I studied Thurston's commentary very carefully, researching the accuracy of his statements and assertions to the extent it was possible to do so. I found his commentary to be filled with inaccuracies and mischaracterizations. It asserts a number of fallacious
arguments and makes a number of factual statements that are false. I sent Thurston a detailed rebuttal to his commentary.

Since Thurston's commentary has been widely circulated and is showing up on many blogs and Web sites, including those of Prop. 8 opponents, I am posting my rebuttal
here. My hope is that people who would otherwise be unaware of the false and misleading information in Thurston's commentary will at least have accurate information, backed up by research, on which to base their voting decisions.

Thurston's commentary can be found here.

Here's my rebuttal (edited from the original):

Dear Brother Thurston:

An acquaintance sent me a copy of your “A Commentary on the Document ‘Six Consequences . . . if Proposition 8 Fails’” and asked for my reaction to it. I read it carefully and found it to be rife with inaccuracies and mischaracterizations. Since you state that the objective of your Commentary is to help our Church avoid being charged with using falsehoods, I assume you would similarly wish to be made aware of falsehoods in your Commentary.

Curriculum Vitae: You are not listed as a member of the J. Reuben Clark Law School adjunct faculty. This is either an erroneous omission by the law school’s Web site or an inaccuracy both in your Commentary and on your personal Web site. Either way, I assume you will want to correct the error.

Item 1: You correctly point out that the statute cited in the anonymous “Six Consequences” document does not require schools to teach that same-sex marriage is just as good as traditional marriage. However, you incorrectly assert that California Education Code section 51933 (the statute that should have been cited in the document) also does not impose such a requirement. In support of your assertion you cite the provisions of section 51933 that require age-appropriate, medically accurate instruction and teaching of “respect for marriage and committed relationships.” However, you omit to mention the following language in the statute: “Instruction and materials shall be appropriate for use with pupils of all… sexual orientations…. Instruction and materials may not reflect or promote bias against any person on the basis of any category protected by Section 220” (which includes sexual orientation). If Proposition 8 were to be defeated, this language would unquestionably be construed to require that classroom instruction on the subject of marriage portray same-sex marriage as equal in every way to traditional marriage.

You cite section 51933’s exemption of church-owned schools, as if that option were widely available. In reality, the percentage of California families who are able to send their children to church-owned elementary and secondary schools is tiny. The rest of us, who have no choice but to send our children to public schools that are supported with our tax dollars, have no recourse against this government-mandated ideological indoctrination. Already in Massachusetts, where this downward moral spiral is well under way, parents have been told that their children will be indoctrinated in pro-homosexual ideology and will not be excused from the indoctrination, and have been arrested when they attempted to interfere with the brainwashing. [See Video] The great weight that your Commentary purports to place upon “respect for the beliefs of others” is ironic given that “disrespect” would not even begin to describe the mistreatment to which government-run schools will subject parents and children who are morally opposed to homosexuality if Proposition 8 does not pass.

Item 2: You assert that the New Jersey Ocean Grove Camp Meeting Association case does not support the proposition that churches may lose their tax-exemption as a consequence of refusing to allow same-sex marriage ceremonies to be performed in their facilities. You observe that the OGCMA case was about loss of property tax exemption rather than income tax exemption, falsely implying that denial of a religious organization’s property tax exemption would not be as serious an infringement of its First Amendment liberties as would a denial of its income tax exemption.

You falsely state that the facility at issue in the OGCMA case was open to unrestricted use by 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.” In support of this assertion you cite what appears to be a slightly different version of your Commentary posted on a pro-same-sex-marriage Web site, or else that article is just coincidentally very similar to your Commentary. In either event, you cite no source for the quoted language. In reality, the facility at issue is used seven days a week for worship services, Bible school, gospel music, and band concerts, all of which OGCMA considers instrumental to the fulfillment of its religious mission and purpose (Declaration of Scott Rasmussen in Support of Motion for Protective Order, OGCMA v. Vespa-Papaleo, D.N.J. Case No. 3:07-cv-03802 (“Rasmussen Decl.”), ¶¶ 11-15). OGCMA has permitted the Boardwalk Pavilion to be used for heterosexual weddings (id. at ¶ 17), but insists that all uses of OGCMA facilities conform to moral standards promulgated by the Methodist Church, which condemns homosexual behavior (id. at ¶ 18).

You appear not to appreciate the gravity of the First Amendment infringement in the OGCMA case when you assert that it is “sensible” for a government agency to deny tax-exempt status to a church that refuses to permit behavior on its premises that is inimical to its religious doctrines. You point out that OGCMA “could discriminate if they ceased to claim a property tax exemption,” as if this would somehow resolve the constitutional issue. You advise: “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.” Apparently by this you mean to imply that if the denial of a church’s constitutional rights only costs the church $200 per year, there is no harm done.

You go on to state that “to your knowledge” the LDS Church has never taken advantage of a property tax exemption. In fact, all churches are automatically exempt from property tax in all 50 states. The New York Times reports that “beyond the federal income tax exemption they share with all nonprofit groups, houses of worship have long been granted an exemption from local property taxes in every state” (Diana B. Henriques, “As Exemptions Grow, Religion Outweighs Regulation,” N.Y. Times (October 8, 2006)). New Jersey law, for example, expressly exempts from property tax “all buildings actually used in the work of associations and corporations organized exclusively for religious purposes, including religious worship…” (N.J.S.A. 54:4-3.6). The California Constitution similarly exempts from property tax “Buildings, land on which they are situated, and equipment used exclusively for religious worship” (Cal. Const., Art. XIII, § 3(f)). It is inconceivable that the LDS Church would not be taking full advantage of all tax exemptions to which it is legally entitled, and it is certain that the Church would suffer an enormous economic loss if they were revoked or denied.

Constitutional law professor Douglas W. Kmiec says: “The endgame of gay activists is to strip the Boy Scouts (and by extension, any other organization that morally opposes gay marriage) of its tax-exempt status under both federal and state law…. For technical legal reasons, it is difficult to challenge a religious group's non-profit status in federal court, but state court is more open. There, judicial decisions approving same-sex marriage or even state laws barring discrimination can be used to pronounce any opposing moral or religious doctrine to be ‘contrary to public policy.’ So declared, it would be short work for a state attorney general's opinion to deny the tax-exempt status of charities and most orthodox Jewish, Christian and Islamic religious bodies. If enough state lawyers do this, expect the IRS to chime in” (Douglas W. Kmiec, “If gays marry, churches could suffer,” The Chicago Tribune (May 26, 2006), reproduced here).

Item 3: You assert that Catholic Charities “voluntarily” stopped providing adoption services in Massachusetts. This does violence to the meaning of the word “voluntary,” given the opening paragraph of the newspaper article you cite, which states: “Archbishop Sean P. O'Malley and leaders of Catholic Charities of Boston announced yesterday that the agency will end its adoption work, deciding to abandon its founding mission, rather than comply with state law requiring that gays be allowed to adopt children” (Patricia Wen, “Catholic Charities to halt adoptions over issue involving gays," Boston Globe (March 11, 2006). A religious organization’s decision to cease providing badly-needed social services that are part of its core mission in order to avoid being legally compelled to violate its fundamental doctrines can hardly be called “voluntary.”

You point out that LDS Family Services still provides adoption services in Boston, as if this canceled out the fact that Catholic Charities has been prevented from doing so. You also point out that LDSFS handles only voluntary adoptions while Catholic Charities handles non-voluntary adoptions, which only serves to highlight that Catholic Charities was filling a critical need by serving the most difficult-to-place children, a need that is now going unmet (Michael Levenson, “Workers rush to fill void left by Boston agency's decision,” Boston Globe (March 11, 2006). Your implication that by handling only voluntary adoptions LDSFS will shield itself from being sued for refusing to place children with same-sex couples is refuted by the Butler v. Adoption Profiles, LLC case, in which a private, Internet-based adoption agency was forced to cease posting profiles of Californians because it had refused to post the profile of a same-sex couple (Settlement frees up Adoption Profiles to continue helping families,” Alliance Defense Fund Press Release (May 22, 2007)). And, by the way, it doesn’t matter that the Butler case was not based on the California Supreme Court’s same-sex marriage ruling. The point is that those who seek to normalize same-sex relationships have already resorted to litigation to coerce acquiescence by those who resist on moral grounds, and they will only be further encouraged to do so if Proposition 8 is not passed.

You assert that redefining marriage to include same-sex couples will have no impact on adoptions in California because the state’s domestic partnership laws already give same-sex couples the same rights as married couples. Suffice it to say that there is a strong consensus among legal experts in this field, on both sides of the same-sex marriage issue, that elevating same-sex marriage to the level of a constitutional right will result in multifarious new infringements of religious liberty on many fronts, including in the area of adoption services. See Barbara Bradley Hagerty, “When Gay Rights and Religious Liberties Clash,” National Public Radio (June 16, 2008); Maggie Gallagher, “Banned in Boston: The coming conflict between same-sex marriage and religious liberty,” The Weekly Standard (May 15, 2006); Peter Steinfels, “Will Same-Sex Marriage Collide With Religious Liberty?,” New York Times (June 10, 2006); Heritage Foundation, Panel Discussion Transcript: “Same-Sex Marriage and the Fate of Religious Liberty” (May 22, 2006).

Item 4: You dismiss the suggestion that sectarian colleges and universities may be required to offer married student housing to same-sex couples because one case involved a non-sectarian school that received state and federal funding. You further assert that “the gay marriage problem will not arise” at LDS universities “because engaging in homosexual activity is a violation of the honor code and is a basis for expulsion from the University.” Neither of your rationales would appear valid in light of the Doe v. California Lutheran High School Association case, in which a church-owned school was sued for enforcing its code of conduct by suspending two students who allegedly violated that code by engaging in a same-sex relationship (Alliance Defense Fund, “Christian school sued for following its principles,” September 11, 2007). Although the court held in the school’s favor, the religious organization that runs the school was forced to retain lawyers in order to fend off this attack on its right to set its own standards of eligibility and conduct (see my discussion of Item 6, below).

You assert that California domestic partnership laws already guarantee equal access to family housing, but that (so far) no private religious school has been forced to comply with the law. This overlooks the very high probability that a radical redefinition of marriage will trigger all kinds of things that have never happened before, including challenges to sectarian colleges’ housing policies. Again, your confidence that constitutional recognition of same-sex marriage will not change anything is not shared by experts knowledgeable in this field (see sources cited above).

Item 5: You deny that any minister in Canada has been “convicted of a crime” for preaching against same-sex marriage. Of course, the “Six Consequences” document did not say ministers may be “convicted of crimes.” It said they “may be sued for hate speech and risk government fines.” In fact, ministers in Canada have been sued and subjected to monetary penalties and governmental infringement of their religious liberties for preaching against same-sex marriage. A Catholic bishop in Calgary was the target of complaints filed with the Alberta Human Rights Commission because he issued a pastoral letter that urged Catholics to oppose same-sex marriage (“Calgary bishop defiant about gay marriage views,” Canadian Press (Mar. 31 2005). An Alberta pastor, also the target of a complaint filed with the Alberta Human Rights Commission, was ordered to never again publicly express his religious belief that homosexuality is immoral and was required to pay $5,000 to the complainant as “damages for pain and suffering” (“Government to pastor: Renounce your faith!” WorldNet Daily (June 9, 2008). A Human Rights Commission complaint was also filed against a Catholic priest for quoting from the Bible, the Catholic Catechism, and papal encyclicals (Bob Unruh, “Priest investigated for quoting Bible,” WorldNet Daily (June 5, 2008).

Your citation of the Owens case and the Good News Employee Association case does not support your position. Although the Owens case did not involve a minister, it clearly involved a prosecution of religious expression under a hate crime statute. That the lower court’s decision was eventually overturned on appeal is undoubtedly cold comfort to Mr. Owens, who had to endure the ordeal and expense of defending against a criminal prosecution. The Good News Employee Assn. case was decided against the employee plaintiffs on the ground that the government employer’s interest in maintaining the efficient operation of the office gave it qualified immunity (Good News Employee Ass'n v. Hicks, 223 Fed. Appx. 734, 735 (9th Cir. 2007)). Obviously this fact situation is not analogous to a minister being penalized for preaching, and this case has no bearing on the issue raised in the “Six Consequences” document.

Item 6: You assert that any litigation that may be triggered by the redefinition of marriage will not result in additional costs to anyone because legalized same-sex marriage will bring a net influx of revenue into California. This makes no sense unless you assume that everyone who will be negatively impacted by litigation costs related to same-sex marriage will receive an offsetting benefit of additional revenue generated by a rash of same-sex marriage ceremonies. That assumption is patently untrue.

You assert that changing the definition of marriage will not precipitate a “cascade of lawsuits” because domestic partners already have all the rights of married couples in California. This ignores the enormous difference between legislatively conferring specific benefits and radically redefining the most fundamental unit of society. There is a broad consensus among legal experts that working through the countless details of defining the impact of that redefinition upon society will inevitably generate a flood of litigation for years to come. See Roger Severino, Legalizing gay marriage will spark lawsuits against churches,” San Francisco Examiner (April 7, 2008); Deborah Bulkeley, “
Shurtleff backs delay on same-sex ruling,” Deseret News (May 31, 2008); Maggie Gallagher, “Banned in Boston: The coming conflict between same-sex marriage and religious liberty,” The Weekly Standard (May 15, 2006); Urofsky, L. & Finkelman, P., A March of Liberty: A Constitutional History of the United States, “Same-sex Marriages,” Oxford University Press (2004). The cost of this litigation to the parties who are sued will likewise be enormous, and will in many cases be passed on to consumers.

Claims have already been asserted against providers of various kinds of services who have refused to serve same-sex couples. You argue that these claims do not support the points in the “Six Consequences” document because they were not based on the California Supreme Court’s same-sex marriage ruling. I disagree. I believe the reality is that with litigation already flourishing as same-sex couples seek to assert their perceived rights, a radical change to the definition of marriage will only serve to multiply that litigation exponentially.

Your assertion that there are no “activist judges” on the California Supreme Court is absurd. An assessment of a judge’s judicial philosophy is based on his or her decisions and the basis for them. His r
ésumé and the political party affiliation of the governor who appointed him are immaterial. Four justices of the California court, in an unprecedented abuse of raw judicial power, arrogantly presumed to redefine the most fundamental institution of human society, and in the process trampled the democratic process and nullified the votes of millions of California voters, as pointed out by Justice Baxter in his dissenting opinion. Justice Baxter lamented: “But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves. Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right, immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.” In re Marriage Cases, 43 Cal. 4th 757, 863-864, (2008) (Baxter, J., dissenting).

In fabricating a rationale to support the result it wanted to reach, the bare, four-person majority first “greased the skids” by holding – for the first time – that “sexual orientation” constitutes a “suspect classification,” which automatically stacks the deck against the validity of the California marriage statute adopted by the 61% of California voters who passed Proposition 22. In reaching this ground-breaking holding, which is contrary to the decisions reached in all but one other jurisdiction that has considered this issue, the court summarily dispensed with the long-standing requirement that a characteristic be “immutable” (i.e., inborn and unchangeable) in order to qualify for “suspect classification” status. Of course, the court had to disregard this requirement, because there is no scientific evidence that same-gender attraction is an “immutable” characteristic. In addition, the court simply assumed without any evidentiary basis that sexual orientation “bears no relation to a person’s ability to perform or contribute to society,” which is another well-established precondition to acquiring “suspect classification” status. In other words, the court took it for granted that same-sex marriage is as beneficial as traditional marriage is to society at large and especially to children, whose welfare is the primary purpose of marriage. The court refused to even consider the abundant evidence that children are much worse off when they are not raised by both their biological mother and their biological father (Maggie Gallagher & Joshua K. Baker, “Do Mothers and Fathers Matter? The Social Science Evidence on Marriage and Child Well-Being,” Institute for Marriage and Public Policy, February 27, 2004; Kristin Anderson Moore, Ph.D., Susan M. Jekielek, M.A., and Carol Emig, M.P.P., “Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What Can We Do about It?,” Child Trends (June 2002); Timothy J. Dailey "Homosexual Parenting: Placing children at risk" (2002); Trayce Hansen, “Love Isn’t Enough: 5 Reasons Why Same-Sex Marriage Will Harm Children”; Glenn T. Stanton, “Why Children Need Father-Love and Mother-Love,” Parts 1 & 2, Focus on the Family; Glenn T. Stanton, “Are Same-sex Families Good for Children?,” Focus on the Family; “Comparing the Lifestyles of Homosexual Couples to Married Couples,” Family Research Council; “Questions and Answers: What's Wrong With Letting Same-Sex Couples 'Marry'?,” Family Research Council; Jane Chastain, “Trophy children,” WorldNetDaily, February 21, 2002).

There has never been a more egregious example of judicial activism than the effrontery of these four judges. In the words of J. Reuben Clark Law School Professor Lynn Wardle, it was an “act of arrogance seldom matched in American legal history” (Carrie A. Moore, “Gay marriage would have long-term societal impacts,” Deseret News (Aug. 23, 2008)). Your admiring summary of Ronald George’s life story, and of the poignant mental processes he went through on his way to deciding to destroy marriage as we know it, is touching but completely irrelevant to whether the court’s decision was a shameful example of rampant judicial activism.

P.S. A revised and improved version of the "Six Consequences," including cites to sources, can be found here.

Statement of Purpose

I am a strong supporter of Proposition 8, a proposed amendment to the California constitution that will restore California marriage law to the way it was before four judges decided they had the power to rewrite the constitution as they saw fit.

I created this blog as a place to post information that will be of interest to people who honestly wish to consider all sides of this issue before making up their minds. I hope you find it informative.