Tuesday, October 28, 2008

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.


Patrick Meighan said...

This is not legal analysis. This is not anything in the same ballpark as legal analysis, independent or otherwise.

Patrick Meighan
Culver City, CA

Anonymous said...

1. prop 22 was drawn up by a politician during an off-voting year to gain republican seats
2. sane and intelligent people are not for discrimination - and certainly do not want to be associated with the 1st state in the nation to write discrimination into the constitution
3. if you haven't felt the earth move since May, then what exactly will change Nov 4th
4. God and Jesus does not hate
5. when you even try to take people's rights (yes, it's a right under the constitution) away, they get angry at those trying to have special status written into the constituion

Anonymous said...

I completely agree with Mr.Smith. And I think it's very interesting that people who say they are open minded and are against discrimination would not be open minded enough to listen to a dfferent view point without becoming hostile or afraid. If people can't even listen to this argument that seems most close minded of all. It is not okay to hurt the majority by doing something for the minority they already can do, at least in a very similar way. Thanks for being tolerant.

Tyfi said...

The argument will likely never come to a close, but I think that finally, the counter forces will not relent. Many people believe in their faith that homosexuality is not consistent with the teachings for their faith. Gay rights have come a long way in demanding fair treatment, equality and expression.

I as a person of faith and an American cannot deny them these things and would not.

We have a separation of church and state that protects citizens from being denied rights and liberties. But when the state has adopted marriage it cannot redefine religiously inspired doctrine. The state can bestow equal rights and protection, and there is little that forces of faith could do about those things.

But now the gay rights movement has really stepped in it. They have decided to force their choice upon those that have been shunned into 'fundamentalist' holes by getting the state to redefine religous princples.

In their excitement they may have actually managed to unite Christians, Jews, Catholics, Mormons and likely soon Muslims. Politics makes for strange bedfellows indeed.

If this is a matter of preference we are going to start redefining things with, are we going to allow Orginalist Mormons polygamy? Are we going to allow incest in 'backwoods' areas if they wish? Are age requirements to sexual activity also up for redefinition?

To be honest as a conservative that does not wish to deprive gays of their rights, I also do not want my religion rewritten for me by the state. I think that perhaps their movement to make this happen whether others 'like it or not' is goin to backfire on them now for the first time.

Anonymous said...

There is absolutely no legal analysis here. This is simply an argument without any facts. It only states one opinion - that of the author.

Joe said...

"...children would, in effect, be officially instructed that parents and religions who try to teach the traditional views are wrong."

My stepson attends a very progressive private school in the bay area. Many of the parents are same-sex couples. This, among other things, was one of the selling points to send my stepson there. There are a number of openly gay and lesbian teachers and administrators. The school recognizes same-sex couples as married couples, even if the law does not.

My step-son is in kindergarten. My close friend has a child at this same school in 2nd grade. I, personally, teach my stepson that the kids with same-sex parents are no better or worse than he is. I teach him that their parents ARE married. I teach him that their family is just as good and whole as ours. The school, however, has never mentioned marriage at all, let alone same sex marriage to the kids.

I know that this subject has come up in their 6th, 7th and 8th grade classes. Parents were upset that one of the classes spent three days on the issue, one of those day lessons-plans dedicated to reviewing and understanding why some people do not want same-sex couples to be allowed to marry, another day dedicated to why some people want them to get married, and the third day dedicated to the students having a class discussion to come with their own conclusions.

I was upset when I heard about this... after all I am not paying 10,000 per year for my stepson to learn about things that go against our family values. But at the hearing that the school had about it, the three teachers involved explained (2 of them are gay). They talked about how the greater lesson was a practice in learning about, understanding and fully considering other world-views. The wanted the kids to have an opportunity to understand the concerns and feelings on all sides, and then make their own decisions about it. After this hearing, I wasn't angry anymore that they were reviewing anti-marriage material because my values align with the idea that my stepson be provided with opportunities to hear about, think about and understand why other people feel the way they do about things. I want him to be able to respect it, even if he does not agree.

My main points:
1.) No one is telling k-3 graders about marriage and gay marriage in the classroom.
2.) And, at least at my stepkid's school, when the talk about it with the age appropriate groups, they ARE teaching them, "Some people find same-sex couples wrong... some people have no problem with same-sex couples" -- They are hearing both sides.