Responses to Thurston's "Six Consequences... If Prop. 8 Fails"

This fantastic post comes from the bloggers at Keeping Marriage True:

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 Propostion 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. 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 (slightly 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 résumé 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 that 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.

Appendix: Based on my correspondence with you, I understand that you continue to believe your arguments are valid, despite the counterarguments detailed above. You also believe that it is permissible for a faithful Latter-day Saint to actively oppose Proposition 8. Despite the direction of the First Presidency that all Church members should use their "best efforts" to support and promote Proposition 8, you have chosen to use your best efforts to undermine it with fallacious arguments and inaccurate information.

I think it is shameful that you disguise your true motives by couching your Commentary in terms calculated to deceive readers – particularly Church members – into believing that you are a loyal Church member whose only intent is to help the Church by correcting inaccuracies. Many enemies of the Church are now circulating and using your Commentary as a weapon against the Church and against Proposition 8, misguidedly touting your status as a BYU law professor to give it increased credibility that it does not deserve. Your Commentary is not only serving to mislead people about the merits of Proposition 8 but, I believe, it is also helping to undermine some Church members’ faith and confidence in Church leaders. If your objective was truly “to be of service” to the Church, I believe that quite the opposite has occurred.

For more information go to http://whatisprop8.com