Proposition 8: Separating the fiction from fact


"Their attacks have come before and they always use the same scare tactics. This time they want to eliminate rights and they are using lies to persuade you. Prop. 8 will not affect church tax status. That's a lie. And it will not affect teaching in schools. Another lie. It's time to shut down the scare tactics." No on 8 TV ad.

Throughout the campaign for Proposition 8, opponents routinely accused the amendment's sponsors, Protect Marriage, of spreading lies to earn voter support of the measure.

In one ad, they elicited the support of California State Superintendent of Public Instruction Jack O'Connell to echo their cries.

"Prop 8 has nothing to do with schools or kids. Our schools aren't required to teach anything about marriage and using kids to lie about that is shameful."

So, who was telling the truth? The following is a look at some of the claims made by No on 8, followed by the facts.

Nothing to do with education
CLAIM: Proposition 8 has nothing to do with public schools. Two ads addressed this claim, the one featuring O'Connell, the other coming in the "using lies to scare." Even mainstream media got into the act. In a Nov. 13 Sacramento Bee editorial, called "Bitterness Serves No One's Interest," the following comment was made:

"They (No on 8 supporters) are frustrated that the Proposition 8 campaign misled so many voters into thinking that, if the initiative failed, churches would be forced to marry same-sex couples and schools would have to include gay rights in their curriculum."

FACT 1: The California education code 51933 requires that instruction materials "shall teach the respect for marriage." If California law declares same-sex marriage a legal right, the education code would force teachers to include it in any discussion of marriage.

FACT 2: According to the department of education's Web site, 96 percent of all school districts in California provide comprehensive sex education, the subject area in which marriage is taught.

FACT 3: A first-grade public school class in San Francisco was taken on a field trip Oct. 10 to a lesbian wedding at City Hall, officiated by Mayor Gavin Newsom. School officials said they wished to provide their 5- and 6-year old students a "teachable moment."

FACT 4: Also in October, a Hayward, Calif. school hosted a "Coming Out Day" in conjunction with "Gay and Lesbian History Month." In addition, a kindergarten teacher at the same school passed out pledge cards, created by the Gay, Lesbian and Straight Education Network, to her young students asking that they sign the cards as part of their pledge to avoid using anti-gay slurs and to protect homosexual students. Parents were not notified of the activities.

FACT 5: The Anti-Defamation League, which contributed funds to the No on 8 campaign, wrote an amicus brief in a Massachusetts case arguing the importance of teaching students about homosexuality at an early age.  

"In the Commonwealth of Massachusetts, where the right of same-sex couples to marry is protected under the state constitution, it is particularly important to teach children about families with gay parents." (p. 5)

"Diversity education is most effective when it begins during the students' formative years. The earlier diversity education occurs, the more likely it is that students will be able to educate their peers, thereby compounding the benefits of this instruction." (p. 3)

FACT 6: The California Teachers Association pumped $1.25 million into the No on 8 campaign.

FACT 7: The No on 8 committee ignored a challenge by the Yes on 8 campaign to a public debate to hammer out the issue of how same-sex marriage would impact school instruction and curriculum.

"Taking children out of school for a same-sex wedding is not customary education," said Yes on 8— Campaign co-Manager Frank Schubert. "This is promoting same-sex marriage and indoctrinating young kids. I doubt the school has ever taken kids on a field trip to a traditional wedding."

An opt-out process
CLAIM: California offers an opt-out option for parents who do not want their children exposed to sex education or classes focusing on homosexuality.

FACT 1: In Massachusetts, the first state in which same-sex marriage was legalized, school districts refused to notify parents or allow for an opt-out procedure, even though a 1996 state law mandated it.

An appeals court there later ruled that parents had no right to object to teaching about homosexual marriage, even though it acknowledged that the material was "precisely intended to influence the listening children toward tolerance of gay marriage. That was the point of why that book was chosen and used," the court ruled, adding that there was "no evidence of systemic indoctrination."

FACT 2: In 2005, a California appeals court ruled, in a matter involving an explicit sex survey given to students, that parental rights do "not extend beyond the threshold of the school door."

"Schools cannot be expected to accommodate the personal, moral or religious concerns of every parent," Judge Stephen Reinhardt wrote in that decision. "Such an obligation would not only contravene the educational mission of the public schools, but also would be impossible to satisfy."

FACT 3: The American Civil Liberties Union, of which several California chapters contributed at least $2 million to the No on 8 campaign, wrote an amicus brief in the Massachusetts case arguing against parental rights at schools.

 "Specifically, the parents in this case do not have a constitutional right to override the professional pedagogical judgment of the school with respect to the inclusion within the curriculum of the age-appropriate children's book… 'King and King.'" (p 9)

 "This court has astutely recognized that a broad right of a parent to opt a child out of a lesson would fatally compromise the ability of a school to provide a meaningful education, a conclusion that holds true regardless of the age of the child or the nature of the belief." (p 18)

Fundamental rights
CLAIM: Proposition 8 eliminates a "fundamental right" of homosexuals to marry.

FACT 1: Fundamental rights are rights which are "deeply rooted in history and tradition and implicit in the ordered concept of liberty." Traditional marriage meets this definition; Same-sex marriage does not.

FACT 2:  Same-sex "marriage" only recently became a purported "fundamental right" in May 2008 when four justices of the California Supreme Court declared it so by reading same-sex "marriage" into the state Constitution, contrary to the stated will of the people. Now, Prop. 8 constitutionally mandates that only traditional marriage is a fundamental right. The court is subject to the people's clear marriage definition now embodied in the constitution.

Civil rights/Equal protection
CLAIM: Prop 8's definition of marriage violates the principle of equal protection of the laws and is "discriminatory," similar to California's law banning inter-racial marriages, which was repealed by the court in 1947.

FACT 1:  All Californians have an equal right to marry, as long as they marry a person of the opposite sex and meet other qualifications. Same-sex couples are actually demanding "special" protection of the law. They are asking to take the huge step of redefining "marriage" to meet their personal desires.

FACT 2: Equal protection of the law has always been appropriately tied to objective immutable characteristics, such as gender and race. Homosexuality, unlike race, is not an immutable characteristic.  Homosexuals are defined by their subjective sexual conduct choices, which they can change and do change. Comparisons to the civil right's movement are factually and legally improper.

FACT 3: Same-sex couples in California already have all of the same rights and benefits afforded traditional marriage through existing domestic partnership laws. 

"It's not about the benefits," Tony Perkins, president of Family Research Council, told a group of pastors while promoting Proposition 8 during a visit to California. "It's about forcing us to accept their lifestyle. It's an elusive effort on their part to gain a sense of satisfaction and acceptance that they'll never have as long as they are outside of God's will."

The money
CLAIM: Proposition 8 was funded by the Mormon Church and other out-of-state interests seeking to influence the election.

FACT 1: Millions of dollars were invested into the Yes on 8 campaign by a variety of religious organizations, much of it with Mormon connections. Money donated from the Mormons, however, came from individual donations and not the church itself, although the LDS leadership solicited donations on behalf of Proposition 8.

FACT 2: According to the Los Angeles Times, which has been tracking donations online, the No on 8 campaign received more out of state money than Yes on 8. Of the $38.4 million raised by No on 8, $11.9 million or 31.1 percent came from out of state. For the Yes on 8 campaign, $10.7 of the campaign's $36.1 million in donations came from outside California, representing 29.7 percent of the contributions.

According to a Nov. 15 article in the San Francisco Chronicle, Denver businessman Tim Gill, founder of Quark publishing software, and an action fund he operates, contributed $720,000 into the No on Prop. 8 campaign. Jon Stryker, a Michigan man, donated $1.2 million, while Bruce Bastian, the Utah creator of WordPerfect software, contributed $1 million.

"The money flowing in from the opposition's campaign illustrates that, for the gay rights activists nationwide, they realize the battle here is ground zero," Proposition 8 legal counsel Andrew Pugno said during the campaign. "This is for all the marbles."

Religious liberty
CLAIM: Current California law exempts churches and other religious organizations from having to perform marriages for same-sex couples or conduct other services against their religious beliefs.

FACT 1: New Jersey's Ocean Grove Camp, lost its tax-exempt status after refusing to allow a same-sex couple to marry on its grounds.

FACT 2: Catholic Charities in Boston was forced to close its doors in 2006 when it refused to place children in the adoptive homes of same-sex couples.

FACT 3: Supporters of Proposition 8 argue that if same-sex marriage is legalized in California, religious freedoms will be trumped by state law protections for gays and lesbians. Similar instances have emerged in the medical field, including a recent California court ruling against doctors who refused to fertility treatment to a lesbian couple.

In New Mexico, a photographer was fined for refusing to photograph the commitment ceremony of a homosexual couple. In Sweden, where same-sex marriage is legal, a pastor was sentenced to jail for one month for preaching a sermon on the biblical perspective of homosexuality as sin.

"The erosion of church rights has already started," Miles McPherson, pastor of the Rock Church in San Diego wrote in an April commentary for the Christian Examiner.

"In Canada today, if you preach Romans 1—the most famous and clear condemnation of homosexuality—you can go to jail. If you put it on the radio you will lose your license. If they deem your speech harmful, they will judge your speech illegal."

Barbara Bradley Hagerty, a writer for the liberal leaning NPR, explored the situation in a June article titled "When Gay Rights and Religious Liberties Clash."

"Armed with those legal protections, same-sex couples are beginning to challenge policies of religious organizations that exclude them, claiming that a religious group's view that homosexual marriage is a sin cannot be used to violate their right to equal treatment," Hagerty wrote. "Now parochial schools, "parachurch" organizations such as Catholic Charities and businesses that refuse to serve gay couples are being sued — and so far, the religious groups are losing."

Dean Broyles, president of the Western Center for Law and Policy, contributed to this report.