Independent Legal Analysis of Prop 8

Two different legal analyses of Prop 8 came across my desk this morning. Both of them are from competent legal authorities, and neither of them is connected with the Prop 8 campaign in any way known to me.
The first is an article in the San Diego Union Tribune, by University of San Diego Las professor Steven Smith. I am not acquainted with Prof Smith, although I have read articles of his.
His analysis supports the analysis I have offered throughout this campaign: On this issue, the intolerance is coming not from the Religous Right, but from the gay lobby and its allies. Failure to pass Prop 8 will decrease tolerance, not increase tolerance.

Americans generally want to be tolerant – to “live and let live.” So this depiction (seems to)... make a powerful case for legalizing same-sex marriage.

But the depiction also oversimplifies the matter, drastically. What it ignores is the existence of Americans – millions of them, most likely – who believe something like this: They acknowledge, or firmly insist, that gays and lesbians are human beings, as fully citizens and as equal in dignity and worth as their straight neighbors. These Americans recognize that gays and lesbians have often been the victims of senseless prejudice, discrimination and violence. They readily agree that gays and lesbians are as entitled to “the pursuit of happiness” as anyone else, and that it is a good thing for gays and lesbians, like everyone else, to enjoy stable, loving personal relationships.

What these Americans do not believe is that same-sex unions are in all respects equivalent to traditional marriage. More specifically, on moral or religious or purely prudential grounds, they believe that it is better for children to be raised in a family with a father and a mother. These Americans understand, of course, that reality often falls tragically short of the ideal. But it does not follow that the ideal itself should be abandoned.

And this is where things get complicated – and where the “live and let live” sentiment obscures more than it illuminates. That is because if same-sex marriage is legalized, and thus officially deemed equivalent to traditional marriage, then this settlement will converge with powerful anti-discrimination policies and laws that exist in every state and at the national level. The convergence would have legal consequences, and it would work upon culture. And the result would be, inevitably, that the traditional view, and those who hold it, would be disadvantaged in a variety of ways.

“Prediction is very hard,” as Yogi Berra observed, “especially about the future.” Nonetheless, our experience permits some modestly confident predictions about likely legal and cultural consequences of the convergence of same-sex marriage with anti-discrimination laws and policies.

Public schools may not be legally required to teach anything about marriage at all. But the fact is that they do teach about marriage, deliberately or casually, and a consequence of legalizing same-sex marriage will almost inevitably be that the schools would teach the full acceptability of such unions. People would still be free to disagree, of course. But children would, in effect, be officially instructed that parents and religions who try to teach the traditional views are wrong.

Institutions that adhere to the traditional view would be subjected to legal restrictions, some of them likely quite severe. In Massachusetts, the Catholic adoption agency was recently forced either to transgress church teachings by placing children with same-sex couples or else to get out of the adoption business. The agency chose to adhere to its beliefs. By forcing this choice upon the agency, the state acted to the potential detriment of thousands of children.

By the familiar logic that equates opposition to same-sex marriage with opposition to interracial marriage, it is possible that institutions that adhere to the traditional view would eventually be denied tax-exempt status, as happened with Bob Jones University. That outcome would be the financial equivalent of fining such institutions millions of dollars for maintaining the traditional view.

a strong case can be made that the best accommodation – and hence the most tolerant course – is to recognize and respect “domestic partnerships” or “civil unions” for same-sex couples while not legally equating this status with traditional marriage.

In short, the most tolerant position, albeit an inelegant one, may be the compromise that prevailed in California until recently – until the state Supreme Court, on fanciful grounds, invalidated Proposition 22, which the people overwhelmingly approved less than a decade earlier.

A Yes vote on Proposition 8 would be a vote to restore that condition of tolerance.