Proposition 8 won’t change the legal precedent for schools and churches to alter the way they practice, but could open up a whole slew of discriminatory issues on both ends of the spectrum, according to experts on either side of the proposed constitutional amendment, arguably the most controversial and contentious California has ever seen.
So much has been said and debated this election season about Prop. 8, yet the end result will be clear: If the state ballot measure fails with voters on Nov. 4, it validates homosexual marriage. If it wins, gay marriage will be eliminated in the eyes of the state.
But attorneys, some who attended a panel on the subject last week at Cal Lutheran University in Thousand Oaks, believe that Prop. 8, pass or fail, is not that cut-and-dried and could lead to future legal problems down the road.
“Will it have a dramatic effect on schools and churches? Absolutely,” says Jennifer Monk, an attorney representing the Pro-Prop. 8 Advocates for Faith and Freedom, who was also a panelist at the event. “Marriage is fundamental to our society. Changing our definition of it will have all sorts of unintended consequences.”
If Prop. 8 loses, could one of those consequences be that churches and houses of worship will lose their tax-exempt status if they turn away gay couples wishing to be married?
The question is a scare tactic, and the answer is no, according to attorney Kate Kendell, a member of the No on Prop. 8 campaign committee, and the executive director for the National Center for Lesbian Rights in San Francisco.
“Any claim that Prop. 8 will affect the tax-exempt status of churches is a bold-faced lie,” says Kendell. “There’s no other polite way to say it.”
Dean Broyles, a Pro-Prop. 8 San Diego-based attorney for the Western Center for Law and Policy, who was at the Cal Lutheran Panel, stated another concern: Could lawsuits be brought against individual members of the clergy for denying gay couples marriage?
“If Prop. 8 fails in November, you’ll probably see a flood of litigation,” he said. “How can you sue a pastor? The Supreme Court says you can’t. But it’s only a step away from that occurring.”
Kendell begs to differ, saying about Prop. 8, “It’s not a First Amendment issue. Religions are protected.”
One local pastor in staunch support of the state proposition is actually not worried about bad legal ramifications. Dr. Dan Nelson of Camarillo’s Baptist Church won’t marry a gay couple. There are no “on the spot” weddings there, he says, and his patrons know the church’s conservative policies.
“If someone comes to our church and wanted me to marry them, we give them a booklet that requires three counseling sessions,” Nelson said.
“(Prop. 8) is not going to make any difference in the freedom of religious institutions to bless or not bless relationships,” says Rev. Jan Christian, pastor of the Unitarian Universalist Church of Ventura. “Always, clergy have been free to offer a religious blessing to a couple or not.”
Christian, whose church takes a firm anti-Prop. 8 stance, will marry anyone regardless of sexual orientation or faith. But she makes a case for concern because Pro-Prop. 8 campaigns blend together two entities that should remain separate: religion and government.
“We’ve let those two get combined in people’s minds,” Christian said. “I think if we never had, we’d never face some of the confusion we have now. Some of us in the clergy helped add to the confusion.”
Both Christian and Kendell affirm that Prop. 8 also says nothing about education. Another legal rumor, says Kendell, maintains schools will be obligated to modify their curriculums, or be forced to shut down, if they don’t teach about gay marriage.
“Prop. 8,” notes Kendell, “has nothing to do with education, and to suggest otherwise is the most cynical, political game playing possible.”
“We don’t think Proposition 8 will have a particular impact one way or the other” on education, says Hilary McLane, a press secretary for state superintendent of schools Jack O’Connell in Sacramento. “Any teaching about marriage is really a local (school) district decision. Schools are not required to teach about marriage at all. Curriculum is established by local governing boards.”
It’s also established under state Education Code 51933, according to Dr. Jody Dunlap, superintendent of the Oxnard Union High School District (OUHSD).
According to the code, “Instruction and materials shall be appropriate for use with pupils of all races, genders, sexual orientations, ethnic and cultural backgrounds, and pupils with disabilities.” And, “Instruction and materials shall teach respect for marriage and committed relationships.”
Dunlap says OUHSD adheres especially to the code’s requirement to keep sex ed “age appropriate.” If parents, gay or straight, disagree with classroom content, or the age a student is exposed to certain curricula, they can sign a release form.
“We are very, very sensitive to sexual education,” notes Dunlap. “In our district, parents have the right if they feel the child is better to be educated on the home front.”
OUHSD keeps a neutral stance on Prop. 8.
In May, the California Supreme Court ruled that any legislation limiting marriage to only between a man and a woman was unconstitutional. Following the decision, thousands of homosexual couples — 11,000, according to Kendell — were married in courthouses across the state.
Kendell says those marriages shall remain intact.
“It’s our position those marriages will remain valid regardless of Prop. 8,” she said. “We don’t believe, from a legal standpoint, the amendment can apply retroactively.”