59 Constitutional and Family Law Professors from 14 California Law Schools Analyze and Reject Prop. 8 Claims
Today, the San Diego Union-Tribune published a story regarding the California November 4 ballot measure known as Proposition 8 (or “Prop 8”), that if successful would result in a ban on same-sex unions. The proposition is a response to the California Supreme Court’s decision legalizing same-sex unions in the State of California.
Both sides of the issue have organized and are actively attempting to sway voters to one side or the other. According to the article, a group of 59 Constitutional and Family Law professors, on October 29, issued a press release, containing a position paper of their own. The position paper rejects and/or refutes some of the claims made by those in favor of the ban, “Yes on Prop 8.” Of particular interest to this blog, the Nonprofit Law Prof Blog, is the claim that failure to reject the ban would mean that churches, in particular, and by inference, other tax-exempt nonprofits, would lose the status of being tax-exempt if “forced” to discriminate against gay men and lesbians who want to use the church to perform same-sex unions or who just want to rent out commercial spaces owned or operated by the churches or other tax-exempt nonprofits, and the church declines to let them do it.
The Nonprofit Law Prof Blog’s very own, Professor David Brennen was interviewed for the article, and his comments are reflected therein. Among the claims being made by Pro-Prop 8 supporters is the claim that the tax-exempt status of churches could be revoked if Prop 8 is not passed, and the only law in California standing is the California Supreme Court case making same-sex unions legal. Those favoring Prop 8 use this claim, the threatened loss of tax-exempt status of the church, as a way to sway voters to support the ban on same-sex unions represented in Prop 8. The law professors dismiss this claim as basically an unsupported scare tactic to prompt voters to vote yes on Prop 8, i.e., supporting the ban. With the ban in place, no one could force the issue with a church or tax-exempt organization, and allege that the church or other tax-exempt organization is discriminating against gay men and lesbians.
Michael Gardner, who reported the story, wrote that:
A potentially landmark guide is a case that focused on racial discrimination allegations at Bob Jones University, which had denied admission to interracial couples. In 1983, the U.S. Supreme Court held 8-1 that charities and nonprofits cannot maintain an IRS tax exemption if their practices run contrary to “established public policy.”
California’s marital-status and sexual-orientation protections could be construed as established public policy, according to some legal experts.
When asked about this claim and the relevance of the Bob Jones University case to Prop 8 and the surrounding issues, Professor Brennen said,
“Although the high court did not go beyond race in the text of its opinion, the ruling could be interpreted as barring charities from discriminating based on sexual orientation – at least in an environment in which such discrimination violates established public policy,” said David Brennen of the University of Georgia School of Law, who specializes in nonprofit tax law.
Professor Brennen’s interpretation of the Bob Jones University case leaves open the possibility that those supporting Prop 8, who also claim that a church’s tax-exempt status could be at risk, is potentially a correct position.
For the full story, please click here – San Diego Union-Tribune.
AMT