Lies about Prop 8, Part II: Antidiscrimination laws
posted by Kaimipono D. Wenger
This post continues a series on incorrect information being circulated about California’s Proposition 8. I previously blogged about religious freedom issues — that is, whether churches would be forced to marry gay couples.
A second major category of lies about Prop 8 relates to antidiscrimination laws. For instance, one widely circulated document lists as various “consequences” if Prop 8 does not pass: “photographers cannot now refuse to photograph gay marriages, doctors cannot now refuse to perform artificial insemination of gays even given other willing doctors.”
The claim is in part based on actual facts. It’s true that there was a case in New Mexico involving a photographer who refused to photograph a civil union; and it’s also true that there was a case involving doctors who were unwilling to perform artificial insemination for a lesbian couple.
The problem is, that these are claims that come from anti-discrimination law, not from Proposition 8 or the Marriage Cases opinion. And regardless of whether Prop 8 passes or fails, those antidiscrimination laws will not change.
What are those laws? Let’s take a look:
Cal. Civ. Code. 51(b): All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
Cal. Civ. Code 51.5(a): No business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or of the person’s partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers, or customers, because the person is perceived to have one or more of those characteristics, or because the person is associated with a person who has, or is perceived to have, any of those characteristics.
Thus, it’s legally incorrect to claim that businesses in California cannot discriminate against gays and lesbians because of the Marriage Cases opinion. In fact, businesses in California cannot discriminate against gays and lesbians because of state antidiscrimination law. It is _that_ — not Marriage Cases — which requires doctors to offer their services to lesbian couples. (Note that the infamous wedding-photographer case happened in New Mexico, which is not a gay marriage state at all.)
A common claim is that Catholic Charities was forced to stop doing adoptions after Massachusett’s gay marriage decision. This claim is overwrought in its details — Catholic Charities voluntarily stopped adoptions, and was not forced by any state agency, but it is true that Catholic Charities was under investigation for state law violation. However, that investigation dates back to 2000 — four years prior to Goodridge. It is misleading to imply a causal connection between Goodridge, and Catholic Charities’s decision to stop adoptions because of the ongoing state investigation and their unwillingness to comply with state antidiscrimination law.
It’s true that there are some fascinating theoretical questions about the intersections of religion, antidiscrimination law, associational rights, and free speech. There are tensions and competing concerns here, and I don’t mean to claim at all that the current amount of protection given to religious individuals is optimal. For instance, it is entirely in bounds to make the argument, “religious individuals _should not_ have to photograph gay weddings, as this would infringe on their free speech and/or free exercise rights.” The interaction of the competing concerns is complicated, and I’m taking no substantive position on them in this post. Antidiscrimination laws and their applications are sometimes controversial.
However, as a descriptive matter, it is very misleading to point to some application of antidiscrimination law, and then say, “this is what _Marriage Cases_ leads to” or “this is what happens if Prop 8 fails.”
And, just to be clear, this series is examining _legal_ claims about Prop 8. I’m not suggesting that social, moral, ethical, or religious arguments can’t be made in favor of the proposition. (And all of those types of arguments could also be used to criticize Marriage Cases, as well as judicial-role arguments.) We’re just looking at the use of incorrect legal claims; that slice alone gives more than enough material for multiple blog posts.
(And yes, I’m aware that Lavender Law, Morris Thurston, and others have also done a good job of refuting incorrect claims. I guess I’m just late to the party.)