Legal Implications Of Prop 8 on Churches and Schools

In a blog that seems to have been meant as a debate about Prop 8 that never quite finished, a 2nd year lawyer named Carolyn made some arguments about Prop 8, complete with footnotes:

I am not arguing that if Proposition 8 doesn’t pass, churches will be silenced at the pulpit or forced to change their religious creed. But when free exercise and equal protection collide—and they will—free exercise will get the short end of the stick. Marc Stern, a contributing editor of “Same-Sex Marriage and Religious Liberty: Emerging Conflicts,” explains: “[N]o one seriously believes that clergy will be forced, or even asked, to perform marriages that are anathema to them. Same-sex marriage w[ill], however, work a sea change in American law. That change will reverberate across the legal and religious landscape in some ways that are today unpredictable.”

Take education, for instance. In Massachusetts, the state Supreme Court—not a vote of the people—redefined marriage just as occurred in California. In 2007, a Massachusetts elementary school began teaching kindergarten and first grade children about same-sex marriage using a book which told the story of a prince who “lived happily ever after” with another prince. (*I’m not commenting on the quality of the story here, just the legal outcome*). Some parents requested that their children be allowed to opt-out of such instruction until the seventh grade. They did not challenge the use of the book as part of the school’s curriculum. When the school district refused to let the children opt-out, the parents sued in federal court.

They lost. In a 47-page opinion, the First Circuit held that the parents’ right to choose traditional marriage education for their child was not protected by the First Amendment because same sex marriage was permitted by Massachusetts law. Free exercise could not justify legal exemption where due process and equal protection rights were in play.

A similar outcome is not only possible in California, but likely. California’s Supreme Court has already mandated same sex marriage under the law, and unless voters amend this law in November, the court decision stands. California schools would be authorized to teach the same sex tenets of California policy. And it is not difficult to imagine a same sex curriculum under the Education Code which requires schools to teach children about marriage from kindergarten forward.

When First Amendment rights are pitted against Fourteenth Amendment due process, somebody will get hurt. This is not a Chicken Little prophesy. It is a legally-recognized fact.