Questions raised over Yes on Prop. 8 ads - San Jose Mercury News

Questions raised over Yes on Prop. 8 ads - San Jose Mercury News

By Mike Swift
Mercury News

Article Launched: 10/18/2008 06:46:00 PM PDT


Widely distributed television and radio ads warn California voters of two dramatic consequences if they don't approve a ban on same-sex marriage in November: "Churches could lose their tax exemption," and "gay marriage taught in public schools."

Not exactly true, say legal experts and state education officials.

A second, more recent ad by the Yes on Proposition 8 campaign shows a young girl rushing to tell her mother that she learned in school that she could marry another girl. "When Massachusetts legalized gay marriage, schools began teaching second graders that boys can marry boys," law professor Richard Peterson warns in the second ad. A "Yes" vote on Proposition 8 would short-circuit those threats, the two ads say.

"It's unnecessarily and irresponsibly alarmist," Hilary McLean, press secretary for Jack O'Connell, California's state schools chief, said of the ads. While local school boards could add marriage classes to their curriculums, there would be no statewide mandate to do so. Legal experts also say the ads are misleading in their warnings to religious organizations.

"No church is at any risk of losing its tax-exempt status if it refuses to perform same-sex weddings," said Erwin Chemerinsky, dean of the law school at the University of California-Irvine.

Many of the examples the Yes on 8 campaign cites to support its charges happened in states where same-sex marriage is not legal, or invoke cases that involve sexual


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orientation, but have nothing to do with marriage.

To support its claim that churches' tax-exempt status could be at risk, the Yes on 8 campaign cited a New Jersey case where same-sex couples who wanted to have a commitment ceremony were denied use of a beach pavilion owned by a Methodist-affiliated organization. The state, saying the pavilion was not open to the public on an equal basis, revoked the tax-exempt status of the pavilion — but not the organization, nor the rest of its property.

The manager of the Yes on 8 campaign, Frank Schubert, acknowledged that constitutional protections for religious practice protect a church's tax-exempt status.

"A church would be very likely permitted to refuse to perform a gay wedding in the church with no risk to their tax exemption," Schubert said in a written statement. "But if the church rents out property to the public for use as a wedding site, they could not prohibit a gay couple from renting that property for the wedding."

A Massachusetts case is the basis of the campaign's allegation that same-sex marriage will be taught to young children unless Prop. 8 passes. The TV ad is based on a Lexington, Mass., case in which an elementary school teacher read the book "King & King", a children's book that describes a prince who marries another prince.

David and Tonia Parker were one of two couples who sued the school system after their kindergarten-aged son brought home a book from school titled, "Who's In a Family?" It shows families that include two women with children, saying such families are "just fine."

A federal judge ruled against the Parkers and the other couple in 2007, but Parker said parents — not educators — should make moral judgments for young child.

"It would be like me coming into an elementary school and saying, 'I have a Christian family, now we have to talk about Jesus Christ,' " he said. "Gay marriage is being used as a battering ram against parental rights."

The No on 8 campaign ads have generally focused on the general theme that marriage should be equally available to everyone, both gay and straight, avoiding specific legal claims.

The issue of whether children would be forced to learn about same-sex marriage came up as the two sides in Prop. 8 battled in state court this summer about ballot arguments that the Secretary of State distributed to voters.

"Current state law does not require school districts to teach anything about marriage or same-sex marriage at any grade level," wrote Superior Court Judge Timothy Frawley. However, Frawley noted a school district could choose to include such instruction.

In California, public schools do not have formal instruction on marriage until high school. McLean also said California has a stronger "opt-out" provision, which allows parents to withdraw their children from any school instruction, than Massachusetts. Children's books such as "Who's In a Family?" could not be used in a class without the approval of a local school board, she said.

Legal experts said that whatever voters decide with Prop. 8, that there is broad emerging battle ahead between religious liberty and gay rights, a conflict wider than same-sex marriage which could spill into parochial schools, church-related human service organizations, and other areas where religious organizations interact with secular society.

"There will certainly be major clashes," said Marc Stern, general counsel for the American Jewish Congress.

Contact Mike Swift at (408) 271-3648 or mswift@mercurynews.com.