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Beyond the Briefs

Proposition 8 advocates risk legal action, suffer gay-rights reprisals

by Robert DeKoven

Published Thursday, 11-Sep-2008 in issue 1081

Advertisements supporting Proposition 8 will hit the airwaves soon.

Presumably, they will not make their point by denigrating same-sex marriage. They won’t, for instance, feature an altar before which leather-clad men (or women) holding whips pledge their love while a voiceover warns dire consequences for society. Instead, they will likely depict Dick and Jane living happily ever after in wedded bliss, propagating merrily and populating God’s kingdom with (heterosexual only) children.

In other words, the ads will be tasteful. But the intent will be hateful nonetheless. Because, regardless of the approach they take, the message will be: “There’s something inherently wrong with marriage between two people of the same gender.”

Imagine it’s the ’60s, and the Montgomery Bus Lines runs an ad showing a busload of white folks riding in the front. “Let’s keep ‘traditional’ bus rides!” the grinning driver says, while a black passenger clambers aboard and shuffles meekly to the back seat. Advertisements advocating Proposition 8 are no different; they’re simply endorsing perpetuating inequity because it’s “traditional.”

Fortunately, most people know this. As polls now indicate, Proposition 8 is likely to be defeated, because the California Supreme Court has given Californians a taste of life with same-sex marriage. So supporters of the measure will lose. But, in the meantime, in legal terms, they’re risking a lot.

Hotelier and Proposition 8 supporter Doug Manchester, for example, risks a lawsuit by investors in his hotel properties.

Two weeks ago, The Wall Street Journal reported the successful boycott of Manchester’s Grand Hyatt in San Diego after gay-rights activists convinced the American Association of Law Schools (AALS) to pull its meeting from the hotel. Manchester tried to downplay the cancellation, noting that support from Proposition 8 advocates could compensate for it. But it will no doubt hurt when the AALS cancels future events at the hotel, which will deplete not just Manchester’s profits but also those who have invested in the hotel, its franchisor and its parent corporation.

Manchester is no ogre. He has a reputation in San Diego for his philanthropic donations, most notably the $5 million he donated to San Diego State University, despite the fact that its president, Stephen Weber, is a major advocate for gay rights. Manchester has also donated tens of millions to the University of San Diego, which has done so much to embrace GLBT students that conservative Catholics often protest in front of its gates, holding signs proclaiming it “A Gay University.” And Manchester, of course, has First Amendment rights to express his views. But in business they take a backseat to his fiduciary duty to investors.

Anyway, this is hardly the time for Manchester to express personal views that could further depress revenues in an industry that, nationwide, is already suffering significant losses.

So a suit for breach of fiduciary duty could be in the offing.

Other Proposition 8 supporters stand to lose too. Aside from boycotts and lawsuits, one of the ways they will lose is if Congress decides to examine the tax-exempt status of non-profit charitable organizations that use donation monies from tax payers to support political campaigns such as Proposition 8.

The Knights of Columbus, for example, a prominent Catholic charity, may face the loss of its tax-exempt status because it donated more than $1 million to the “Yes on 8” campaign.

Lawyers for the group will argue that the donation is currently lawful. That may be true. But Congress has the power to grant favored tax treatment or to take it away. Indeed, it should; it’s simply not reasonable for charity groups to solicit money to support children in need and then use those funds for political purposes.

Robert DeKoven is a professor at California Western School of Law.

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Comments

moonstone says:

QUOTE: 'Advertisements advocating Proposition 8 are no different; they’re simply endorsing perpetuating inequity because it’s “traditional.”'

It's not simply that marriage should be "traditional." I think there are real reasons to be worried here, probably for problems that we are not even aware of yet.

For example, consider the effects of second-hand smoke. If you had asked people 100 years ago whether smoking was harmful, I am sure they would have said "no, and certainly my smoking could not possibly hurt you (a non-smoker)." Today, with the benefit of hindsight, the dangers of smoking are clear -- to me in particular and to society in general.

Opponents of 8 often state that same sex marriages will have no impact on my marriage in particular nor on society in general. What proof do they offer? None. Can I predict exactly what impact it will have? No, not me either. Am I willing to risk the possible (and in my opinion likely) negative impacts that might occur from redefining marriage? No. I am very uncomfortable with having my children and grandchildren being used as guinea pigs in such a novel experiment. We have no idea where this will lead. It will likely be a generation or more before all the consequences are known -- just like with second hand smoke.

This is one of the reasons that I will be voting yes on proposition 8.

Sep 12, 2008 10:59 PM

Andrew says:

moonstone:

I disagree with you about the effects of second hand smoke, but you do make a good point about the possible effects of gay marriage.

I do, however, support gay marriage.

The second-hand-smoke-killing-people nonsense is just that -- nonsense.

Those of us who live in cities breathe a lot of polluted air, most of it from automobiles. Those of us who live in rural areas with a lot of agriculture also breathe a lot of polluted air, most of it from agriculture-related particulates.

Cigarette smoke is such a small percentage of overall air pollution that the recent California State Air Resources Board's declaration that cigarette smoke is a major air pollutant is ridiculous on its face.

The "studies" that have been cited in support of the claim that second-hand smoke kills or seriously harms non-smokers are nothing more than junk science bolstered by deliberate acts of deception.

For example, the diseased "non-smokers" in one study weren't even asked whether or not they had ever smoked!

Second hand smoke is not a problem indoors if you crack a window to let the smoke out and the fresh air in.

And it certainly is not a problem outdoors, where the smoke quickly dissipates into an atmosphere that is hundreds of millions of cubic miles in size.

Recent bans on outdoor smoking in the name of protecting the health of non-smokers are not just wrong, they are an insult to the intelligence of any aware, thinking person.

So a lot of doctors, scientists, the American Lung Association, the AMA, the American Heart Association, etc., claim that second-hand smoke will kill non-smokers.

Shouldn't we believe them?

No.

They are lying.

It's that simple.

They know better.

But why would they lie?

Because they want people to stop smoking.

And they figure (quite rightly) that getting the general public scared of second hand smoke will put enough pressure on smokers to get them to quit.

Welcome to the Nanny State.

If I had kids or grandkids, I'd be very concerned about a "free" society that is chipping away at its own freedoms in the name of forcing people to "do what is good for them" and telling lies in order to accomplish that end.

Now, as to gay marriage...There will no doubt be some unforseeable effects, because this is a radical redefinition of marriage.

I am gay and I have no interest whatsoever in getting married. I suspect that a lot of other gays feel the way I do.

But I do think that gays will never be truly considered okay and equal unless they have the same rights straights have.

And absent any real evidence or a convincing argument that gay marriage will undermine the family (which is, after all, the foundation of society in the sense that it allows for the raising of our kids), our national commitment to freedom and equal protection under the law should prevail and gay marriage should be allowed.

Sep 13, 2008 5:20 PM

johngaltjohnson says:

Mormon $s are now at 35% of the Yes donations, and that is just the sum of those donations … It could be higher. Is there a fundamental question here: Is a religious institution trying to buy this election and change the California Constitution???

We know they have been going door-to-door for more than a month to attempt to place 1 million lawns signs in California neighborhoods the last few weeks of September …but right now they are claiming on various websites that LDS members account for more than one-third of donations to Yes on 8…you might want to check it out…

Sep 16, 2008 10:20 AM

kyle says:

You should read this if you want to know what these nonprofits supporting prop 8 are doing with their money:

http://justinmclachlan.com/08/46/california-family-council-money/

Sep 17, 2008 8:02 AM

Elena says:

If the conequences to YOUR marriage are that you suddenly want to go out and get a gay marriage, well.... ha ha.... IF you don't want gay marriage DONT HAVE ONE! and let others have theirs!"

Sep 17, 2008 7:12 PM

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