The Selling of Proposition 8

Published in: January-February 2009 issue.


ON MAY 15, 2008, the California Supreme Court ruled that the state constitution required that gay couples be permitted access to civil marriage in California. The court reasoned that the state constitution’s establishment of a fundamental right to marry (under the state’s privacy and due process clauses) applied to two people of the same sex who wish to marry, and concluded that to receive equal protection under the law—also guaranteed by the state constitution—such couples had to receive the designation of “marriage” rather than the separate classification of “domestic partnership,” already available in California for gay couples.

On October 28, 2008, the Connecticut Supreme Court ruled that the state constitution required that gay couples be permitted access to civil marriage in Connecticut. Relying solely on the equal protection guarantee provided by the state constitution, the court concluded that gay couples had to receive the designation of “marriage” rather then the separate categorization of “civil unions,” already available in Connecticut for gay couples.

The marriage equality train seemed to be on a roll, but supporters of marriage equality awoke to a different landscape on Nov. 5. The reality of a President-elect Barack Obama, someone committed to advancing equality for LGBT people, was exhilarating. But the other news was sobering. Arizona and Florida had enacted state constitutional bans on recognizing marriage for same-sex couples, joining thirty states that had already passed such statutory or constitutional bans. And most cruelly, a new California state constitutional amendment, set forth in Proposition 8, had passed, stripping gay couples’ access to civil marriage after six months in which they enjoyed this right.

What Prop 8 did was simple. It added a new section 7.5 to Article I of the California state constitution with the following words: “Only marriage between a man and a woman is valid or recognized in California.” Section 7 of Article I of the California constitution still proudly proclaims that no person may be deprived of liberty without due process of law and that no person may be denied the equal protection of the laws; section 1 of that article also still provides Californians with an “inalienable right” of privacy. But those sections can no longer be used, as they were by the California Supreme Court, to provide gay couples with the liberty and privacy rights of equal access to civil marriage.

What was particularly striking about the campaign to enact Prop 8 was the extent to which proponents went out of their way to claim that the new provision would not take rights away from gay couples. In a Frequently Asked Questions document, for example, they raise the question, “Will Proposition 8 take away any rights for gay and lesbian domestic partners?” only to reply: “No. Proposition 8 is about preserving marriage; it is not an attack on the gay lifestyle. Proposition 8 does not take any rights away from gays and lesbians in domestic partnerships. Under California law, ‘domestic partners shall have the same rights, protections, and benefits’ as married spouses. There are no exceptions. Proposition 8 will not change this.”

We should pause for a second on this rather momentous point. Whether it was Sarah Palin falling over herself in the vice presidential debate to proclaim her support for gay couples visiting each other in the hospital, or Mormon leaders proclaiming throughout their vigorous pro-8 campaign that their church does not object to equal rights for same-sex couples in hospitalization, housing, or employment, something had changed in terms of what it is legitimate to say about gay couples in polite company. The arguments used to support Prop 8 reveal how far this benchmark has shifted. A majority of our fellow citizens seem ready to acknowledge that gay couples exist and that we need some amount of recognition in order to go about our daily lives with ease.

But if the point of Prop 8 was not to take rights away from same-sex couples, what then was its purpose? The primary argument advanced by Prop 8 supporters was that providing access to marriage for gay couples would reduce the rights available to others. They claimed that marriage recognition for gay couples in California would make life harder for parents in California who wanted to shield their young children from learning about homosexuals. The “harm to others” argument was played out in two contexts: churches would be harmed because they could lose their tax-exempt status if they refused to perform marriages for same-sex couples; and parents, particularly religious parents, would be harmed when schools started to teach their young children that homosexuality was morally fine. It was this argument—that recognizing marriage for gay couples would cause harm to others—that enabled supporters of Prop 8 to mobilize extensive fundraising and energetic volunteers, particularly among the religious right.

The main legal case that Prop 8 supporters used (and manipulated) in the education context was Parker v. Hurley, a case decided by a federal court of appeals in Massachusetts in January 2008. Two sets of parents brought the case, David and Tonia Parker and Rob and Robin Wirthlin. The Parker’s son Jacob had brought home from his public school kindergarten a Diversity Book Bag that included the book Who’s in a Family? The book had pictures of different families, including interracial families, a family without children, a family with two moms, and another with two dads. In its final page, the book answered the question, “who’s in a family?” with “the people who love you the most!” The Wirthlin’s son, Joey, had came home from his public school second grade, talking about a picture book his teacher had read out loud that day, King and King. It’s about a prince who is ordered by his mother to get married but who keeps rejecting the princesses he meets. Finally, he finds his true love—another prince!

The Parkers and Wirthlins were not happy. They didn’t ask the school to change the curriculum, but they did ask for a special accommodation, namely that no teacher or adult be permitted to expose their children to materials or discussion about sexual orientation or same-sex unions without first notifying them and giving them the opportunity to pull their children out of such discussions. The school refused. Massachusetts state law gives parents prior notice and the right to “opt out” with regard to curriculum that involves human sexuality issues. But, as the school explained to the parents, these materials did not deal with human sexuality. The parents sued, claiming their federal constitutional rights to raise their children as they wished and to practice their religion were being violated.

The parents lost. The court found it difficult to perceive a real burden on the parents in light of the fact that the parents could continue to teach their children at home that same-sex marriages were immoral. And while the court noted that the federal constitution protects parents’ rights to send their children to private schools, rather than public schools, it does not give parents the right to direct how a public school will teach their children. In early October 2008, the parents’ legal case came to an end when the Supreme Court chose not to hear their appeal. But their starring role as voices of doom for the families of America was just beginning.

The Family Research Council produced a video in September 2008, featuring the Parkers’ story. The Parker parents described the book their son had brought home in the Diversity Book Bag as a book “about homosexuality and homosexual relations” and, as proof, opened the page of the picture book to the one showing a child with his two dads. The following month, Rob and Robin Wirthlin became a ubiquitous presence on the California TV scene, with “Yes on 8” releasing a thirty-second ad that was shown innumerable times before the election. In the ad, a pretty young woman tells us that, contrary to what we may have heard, “Prop 8 has everything to do with schools.” She shows us a clip of an interview with Rob and Robin Wirthlin, who explain how “after Massachusetts legalized same-sex marriage,” their son heard from the school how boys can marry other boys. “He’s only in second grade!” exclaims Robin. Rob then explains that they tried to stop the school from teaching about gay marriage, but the court ruled they had no right to stop that or to pull their son out of class.

What does the right of gay couples in California to access civil marriage have to do with Robin’s ability to teach her son Joey that gay marriage is wrong? Nothing. What does a change in society’s views generally say about how gay people should be treated in society, including with regard to marriage, have to do with Joey learning something about gay people in public school that his mother might not agree with? Everything.

Let us try to understand fully how the law operates in this area—not in the overblown manner portrayed by the Yes on 8 campaign, but also not in a manner that underplays the burdens imposed on parents who may be out of step with changing social mores. Once society determines that discrimination on the basis of some category (race, religion, sexual orientation) is wrong, we expect our society to convey that norm in various ways. Public schools are an important vehicle for transmitting societal values to our children, including values of non-discrimination.

In cases as early as 1925 (Pierce v. Society of Sisters) and as recently as 1972 (Wisconsin v. Yoder), the Supreme Court has protected the rights of parents to shield their children from exposure to values with which they don’t agree by permitting them to educate their children outside of the public school system. This was a right my Orthodox Jewish parents took full advantage of, sending me to ultra-religious Jewish schools throughout my elementary and high school years. But once parents choose to send their children to public schools, our system does not ordinarily permit them to see the curriculum ahead of time or to isolate their children from those aspects of the curriculum with which they disagree. One exception has been sex education. Many states, including Massachusetts, have made the policy choice that they will allow parents more specific control and discretion over that area.

As our society changes its views about gay people and gay couples, therefore, new norms will arise that will appropriately be reflected in our schools. Diversity programs in public and private schools across the country, including programs that teach respect for gay people, have arisen not as a result of the recognition of civil marriage (or even civil unions) for gay couples in these locations. Rather, they have been the natural outcome of a new and long overdue norm of nondiscrimination on the basis of sexual orientation that is beginning to take hold in our society.

The key legal point here is that it’s not the legalization of same-sex marriage that’s the root of the tension for parents like the Wirthlins. Opponents of Prop 8 pointed out in their thirty-second ad that the legality of marriage for same-sex couples would not change anything in California schools with regard to curriculum, and that was true. Law professors put out extensive legal statements to that effect, and The L.A. Times published a sophisticated editorial making those same legal points. But the audience targeted by the “Yes on 8” campaign was apparently not convinced. That is due partly, I believe, to the fact that gay rights advocates have not forthrightly addressed the natural tensions that have arisen as our social norms have begun to shift.

The same limitation exists with regard to the second main argument used by Prop 8 supporters: that churches would be required to perform marriages for same-sex couples or lose their non-profit tax status. This argument truly stretches the bounds of existing legal doctrine. But again, it has some marginal legal basis that may be subject to manipulation. In the 1970’s, the Internal Revenue Service revoked the tax-exempt status of Bob Jones University because the school banned interracial dating among its students. In 1983, the Supreme Court upheld the IRS’s position. (Bob Jones finally lifted the ban in 2000.) More recently, the Ocean Grove Camp Meeting Association of New Jersey, a Methodist organization, refused to rent its boardwalk pavilion to a lesbian couple for a civil union ceremony. The couple filed a complaint with the New Jersey Division on Civil Rights. The division ruled in the couple’s favor, noting that the organization had consistently described the boardwalk property as open for public use and sought federal, state, and local funds for maintenance of the property on the grounds that it was open to the public. In the meantime, the state’s Department of Environmental Protection revoked a portion of the association’s property tax exemption that applied solely to the pavilion.

These cases are not easy to address and resolve. In a recent book chapter titled “Moral Conflict and Conflicting Liberties” (which can be downloaded at, I spell out some of the considerations that should come into play when the legitimate liberty interests of gay people to live openly and honestly in society come into conflict with the religious beliefs of individuals and organizations. My primary contention here, however, is simply that we need to address these conflicts in a thoughtful and strategic manner if we wish to avoid the manipulation and abuse of legal fact that occurred in the context of Prop 8.

So, what might such a strategic plan look like? First, as a matter of law, we need to decouple religious marriage and civil marriage. It’s actually a bit of a shock to read the secular marriage statutes of the various states and see the long list of religious clergy noted in the statutes as authorized to perform the civil action of solemnizing a marriage. The confused mix of religious and civil language in these statutes is unfortunate, reflecting the inappropriate overlap of civil and religious marriage status in this country.

A number of people have made this suggestion. Despite the tough political lift it would require, I believe it is worth pursuing. What would be so bad about requiring couples that wish to get married under state law, and receive access to benefits provided by state law, to engage in a civil ceremony under state law? Any couple that also wished to be married by a religious clergy could do so. But secular marriage statutes should make clear that being married in a religious ceremony carries no implications for one’s civil marriage status, and, conversely, that being married civilly carries no implications for one’s religious marriage status. Decoupling religious and civil marriage in this manner will not deal with the underlying tension I describe above, since marriage is truly only a subset of that tension. But it may clear away some of the brush in a way that will help us address the deeper tension.

With regard to the deeper tension, I believe we ignore it at our peril. It is a good thing that the social mores of our country are changing in ways that support the ability of gay people, gay couples, and families headed by gay couples to live openly and honestly in society. But as such tolerance, acceptance, and respect continue to grow, we should also think honestly and strategically about the accommodations we’re willing to make for those whose religious and moral views leave them on the other side of a social divide.

It feels difficult to think magnanimously about such accommodations in the wake of the malicious and deceitful campaign waged by proponents of Prop 8. But the sweet irony of the Prop 8 vote, as Nate Silver points out on his website, is that its passage was largely a matter of the older generation voting for it and the younger voting against it. As many of us know, and even those who oppose us know, it really is just a matter of time before gay couples achieve full equality.

So, while it may seem counterintuitive, I believe the best way to bring us to that point of full equality more quickly and compassionately is to address head-on the tensions that arise when public schools teach tolerance and when public facilities owned by religious entities are asked to host commitment ceremonies for same-sex couples. Whatever we think the answers should be in any particular case, we will benefit more if we’re in control of the answers and the message than if we pretend the tension is not real and legitimate.


Chai Feldblum is a professor of law at Georgetown Law Center, where she directs the Federal Legislation and Administrative Clinic.


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