Opinion - Peter Schrag
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Peter Schrag: Save Prop. 8's scare message for Halloween

Published: Tuesday, Oct. 14, 2008 - 12:00 am | Page 17A

The lavishly funded initiative campaign to write a prohibition against gay marriage into the California constitution is running a TV ad insinuating that if single-sex marriage continues to be legal, little Susies will be encouraged to marry little Sallies.

The ad, on behalf of Proposition 8, features a law professor from Pepperdine University who cites a federal appellate court decision in Massachusetts, where gay marriage is legal. The decision affirms a lower court ruling denying parents of a couple of young children the right to be notified when gay marriage is discussed in their classrooms.

"Think it can't happen?" says the professor. "It's already happened."

But the insinuation about what might happen in California is wildly misleading. It relies on a set of leaps likely to land the leaper in a logical ditch. In the case of one of the kids, the court said, "(T)here is no evidence of systemic indoctrination. There is no allegation that Joey was asked to affirm gay marriage."

In the case of the other, the books from which passages were read "do not endorse gay marriage or homosexuality, or even address these topics explicitly, but merely describe how other children might come from families that look different from one's own."

The object, the court held, was not indoctrination but tolerance toward different styles of life and different kinds of relationships.

"Public schools," the court ruled, "are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the student agree with or affirm those ideas, or even participate in discussions about them. …"

"There is no free exercise right to be free from any reference in public elementary schools to the existence of families in which the parents are of different gender combinations."

But the ad is even more misleading in other respects. California's education code says that "instruction and materials shall teach respect for marriage and committed relationships." But the law also begins with an injunction that all instruction be "age appropriate," that local school boards approve all materials and that parents have a right to remove their children from classes relating to sex that they find offensive.

Nearly all California districts, said Sharla Smith, who's the sexual health expert at the State Department of Education, routinely inform parents when sensitive matters are discussed. None would deny parents the right to be notified or to remove their children from a class having anything to do with sex.

A month ago, Frank Schubert, campaign manager for Proposition 8, declared that the polls, which then showed the measure trailing – it's now slightly ahead – underestimated its support because "supporters of traditional marriage don't want pollsters to consider them intolerant, so they mask their true feelings on the issue."

It suffered, he suggested, from what's now commonly called the Bradley effect. That refers to the theory advanced to explain why the Field Poll in 1982 underestimated opposition to gubernatorial candidate Tom Bradley, the African American mayor of Los Angeles, by voters reluctant to be thought biased against blacks.

In fact, it may have had almost as much to do with the then unexpectedly high absentee vote, which the pollsters missed. Still, it's an odd thing to bring up, since it suggests that a lot of voters are fearful that if they tell pollsters they support a ban on gay marriage, they'll be seen as bigots.

That doesn't play directly into the arguments of opponents that the initiative feeds on hatred of gays. But along with the ad's message of "it's already happened" (to kids), it reinforces the argument that Proposition 8 is about a lot more than the protection of traditional marriage.

The fight over Proposition 8 has become a national battle now fed by close to $50 million, and likely to go higher, with large chunks of money coming from out-of-state organizations and individuals that obviously regard it as a crucial point in the battle over gay rights and equality.

Eight years ago, Californians passed Proposition 22 banning same-sex marriage by a vote of 61 percent to 39 percent. Long before last May, when the state Supreme Court overturned that ban, the margin had begun to close. Last Friday, by an equally close 4-3 majority, the Connecticut Supreme Court also legalized gay marriage.

It must be clear to both sides that the tide on gay marriage is turning. The pro-Proposition 8 campaign issued a statement shortly after the Connecticut decision emphasizing the importance of California as a bellwether for the nation.

But given the campaign's fright-wig message about school kids being indoctrinated in homosexuality, and the general drift in public opinion, it's hard to imagine that bans on same-sex marriage have much more of a future – or more of a right to survive in a nation based on equality – than bans on interracial unions had 50 years ago. They, too, had been defended in the name of "traditional marriage."


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