Law Professors Call Yes on 8 Campaign Misleading, Deceptive

by Michael A. Jones

Published October 30, 2008 @ 04:16AM PST

Nearly 60 Californian law professors signed a statement yesterday, blasting the Yes on Proposition 8 campaign for using deceptive and misleading information in trying to peddle their message that same-sex marriage is bad for the state of California.  According to the law professors, the Yes on 8 campaign is not only interpreting California law incorrectly, they are using their misguided interpretation for fear-mongering, suggesting that if Prop 8 fails to pass, church leaders will be arrested for speaking out against homosexuality, churches will lose their tax exempt status for refusing to conduct gay weddings, and that children will be subjected to same-sex marriage indoctrination in the classroom.

In layman's terms, the law professors are saying what many have already increasingly realized: the yes on 8 campaign is desperate, and is full of lies.

Per Professor Pam Karlan, a Stanford University law professor:

"As teachers of the law, we feel an obligation to speak out when claims are made about the law that are simply and clearly false."

Karlan and 58 other law professors found that Proposition 8, if it were passed, would unfairly discriminate against gays and lesbians.  The professors also assert that California's same-sex marriage ruling, which lies at the heart of Proposition 8, does not force churches to teach or preach anything contradictory to the beliefs they prescribe to.  The law professors' statement chides the Yes on 8 campaign for resorting to lies and distortion to sell their claims:

"We recognize that people of integrity can differ in their views of the meaning of marriage.  But people who want to take the right to marry away from same-sex couples should not rely on misleading claims about the current state of the law or about what Proposition 8 would do."

After the jump, you can read the entire statement, as well as view the signatories to it.  If this statement suggests anything, it suggests that the law is on the side of the No on 8 supporters.

Proposition 8, on the ballot this November, proposes a constitutional amendment that would eliminate the right to marry that same-sex couples in California currently possess. We recognize that people of integrity can differ in their views of the meaning of marriage. But people who want to take the right to marry away from same-sex couples should not rely on misleading claims about the current state of the law or about what Proposition 8 will do. As professors who teach and write about constitutional law, family law, and related subjects, we emphasize the following basic points.

First, Proposition 8 would change existing California law and would require the state to discriminate against gay men and lesbians. Proposition 8 would forbid government officials from according gay men and lesbians a fundamental right they now enjoy and that all other adults in California will continue to enjoy: the right to marry a person of their choice. Just as California’s long ago-repudiated ban on interracial marriage constituted racial discrimination, so too, a ban on same-sex marriage would constitute discrimination on the basis of sexual orientation. The ability of same-sex couples to enter into registered domestic partnerships does not eliminate that discrimination. Thus, the claim made by some of Proposition 8’s supporters that the amendment does not discriminate against gay men and lesbians is simply false.

Second, the claim that Proposition 8 is necessary to protect the tax exemptions of churches that refuse to solemnize or recognize marriages between same-sex couples is also false. As the Supreme Court of California made clear in its decision in the Marriage Cases, “affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.” 183 P.2d. 384, 451-52 (2008). That protection for religious views is already written into the California Constitution. Article I, section 4 guarantees “[f]ree exercise and enjoyment of religion without discrimination or preference,” and that is true even if a religion forbids conduct that the state permits. The First Amendment to the United States Constitution also already protects a religion’s decisions about whether to solemnize and recognize particular marriages. So, for example, a religion is free to treat only marriages between members of its faith as valid – or even to excommunicate members who marry outside the faith – even though the state permits marriages between individuals regardless of their religious identity and cannot punish individuals’ failure to follow religious commands. The same protections clearly apply in the case of same-sex marriages. No church will be required to perform or to recognize such marriages. No church’s tax-exempt status will be affected by its decisions about whether to solemnize marriages between same-sex couples. Current law affects only the civil institution of marriage.

Third, the claim that Proposition 8 is necessary to prevent public schools from teaching issues relating to marriage by same-sex couples to children whose parents oppose that instruction is false. Existing California law already provides parents with an absolute right to review all materials provided as part of a school’s comprehensive sexual health education program and to have their children excused from participation. Cal. Educ. Code § 51240; see also Citizens for Parental Rights v. San Mateo County Bd. of Educ., 124 Cal. Rptr. 68, 80-82 (Cal. Ct. App. 1st App. Dist. 1975) (discussing the prior version of this longstanding policy). Nothing about Proposition 8 will change this rule, and Proposition 8 adds nothing to the protection of parental rights already provided by law.

Kathryn Abrams

Herma Hill Kay Distinguished Professor of Law

UC-Berkeley School of Law

John M. Adler

Professor of Law

University of San Francisco School of Law

Scott Altman

Vice Dean and Virginia S. and Fred H. Bice Professor of Law

University of Southern California Gould School of Law

Diane Marie Amann

Professor of Law

University of California, Davis School of Law

Vikram Amar

Associate Dean for Academic Affairs and Professor of Law

University of California, Davis, School of Law

Angelo N. Ancheta

Assistant Professor of Law

Santa Clara University School of Law

R. Richard Banks

Jackson Eli Reynolds Professor of Law

Stanford Law School

Ash Bhagwat

Professor of Law

University of California, Hastings College of the Law

Grace Ganz Blumberg

Professor of Law

UCLA School of Law

Paul Brest

Dean Emeritus

Stanford Law School

Rebecca Brown

Newton Professor of Constitutional Law

USC Gould School of Law

Kim Buchanan

Assistant Professor

University of Southern California Gould School of Law

Alan Brownstein

Professor of Law

Boochever and Bird Chair for the Study and Teaching of Freedom and Equality

UC Davis School of Law

Patricia A. Cain

Inez Mabie Distinguished Professor of Law

Santa Clara University

Erwin Chemerinsky

Founding Dean

University of California, Irvine School of Law

Eric C. Christiansen

Associate Professor of Law

Academic Co-Director, Honors Lawyering Program

Co-Director, GGU-Paris Nanterre Comparative Law Program

Golden Gate University School of Law

William Cohen

C. Wendell and Edith M. Carlsmith Professor, Emeritus

Stanford Law School

Jan C. Costello

Professor of Law

Loyola Law School - Loyola Marymount University

David B. Cruz

Professor of Law

University of Southern California Gould School of Law

Mary L. Dudziak

Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science

University of Southern California Law School

David L. Faigman

John F. Digardi Distinguished Professor of Law

University of California, Hastings College of the Law

Deborah L. Forman

Professor of Law

J. Allan Cook & Mary Schalling Cook Children's Law Scholar

Whittier Law School

Philip Frickey

Alexander F. and May T. Morrison Professor of Law

UC Berkeley School of Law

Thomas C. Grey

Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law, Emeritus

Stanford Law School

Pratheepan Gulasekaram

Assistant Professor

Santa Clara University School of Law

Elizabeth L. Hillman

Professor of Law

University of California Hastings College of Law

Joan Heifetz Hollinger

Professor and Lecturer-in-Residence in Family Law

University of California, Berkeley

Marina Hsieh

Assistant Dean for Academic & Professional Development

Santa Clara University Law School

Leslie Gielow Jacobs

Director, Capital Center for Government Law & Policy and Professor of Law

Pacific McGeorge School of Law

Courtney G. Joslin

Acting Professor of Law

UC Davis School of Law, King Hall

Pamela S. Karlan

Kenneth and Harle Montgomery Professor of Public Interest Law

Stanford Law School

Kenneth L. Karst

David G. Price and Dallas P. Price Professor of Law Emeritus

UCLA School of Law

Herma Hill Kay

Barbara Nachtrieb Armstrong Professor of Law

University of California, Berkeley

Ellen S. Kreitzberg

Professor of Law

Santa Clara University School of Law

Brian K. Landsberg

Distinguished Professor and Scholar

Pacific McGeorge School of Law

Carlton F.W. Larson

Acting Professor of Law

UC Davis School of Law

Lawrence Lessig

C. Wendell and Edith M. Carlsmith Professor of Law

Stanford Law School

Lawrence C. Levine

Professor of Law

Pacific McGeorge School of Law

Goodwin Liu

Associate Dean and Professor of Law

UC Berkeley School of Law

Jean C. Love

John A. and Elizabeth H. Sutro Professor of Law

Santa Clara University School of Law

Maya Manian

Associate Professor

University of San Francisco School of Law

Lawrence C. Marshall

Associate Dean for Public Service and Clinical Education & David & Stephanie Mills Director of Clinical Education

Stanford Law School

Jenny S. Martinez

Associate Professor of Law and Justin M. Roach, Jr. Faculty Scholar

Stanford Law School

John E.B. Myers

Distinguished Professor and Scholar

University of the Pacific, McGeorge School of Law

Julie Nice

Visiting Professor of Law

University of San Francisco School of Law

Deborah L. Rhode

McFarland Professor of Law

Stanford Law School

Camille Gear Rich

Assistant Professor of Law

USC Gould School of Law

Margaret M. Russell

Professor

Santa Clara University School of Law

Jane S. Schacter

William Nelson Cromwell Professor of Law

Stanford Law School

Darien Shanske

Associate Professor

University of California Hastings College of the Law

John Cary Sims

Professor of Law

Pacific McGeorge School of Law

Edward Steinman

Professor of Law

Santa Clara University School of Law

Kathleen M. Sullivan

Stanley Morrison Professor of Law and Former Dean

Stanford Law School

Jonathan D. Varat

Professor of Law

University of California, Los Angeles School of Law

Michael S. Wald

Jackson Eli Reynolds Professor of Law, Emeritus

Stanford Law School

Kelly Weisberg

Professor of Law

University of California, Hastings College of the Law

Lois A. Weithorn

Professor of Law

University of California, Hastings College of the Law

University of California

Stephanie M. Wildman

Professor of Law and Director, Center for Social Justice and Public Service

Santa Clara University School of Law

Michael Zamperini

Professor of Law

Golden Gate University School of Law