When all else fails, hit ’em in the pocketbook…
This week, supporters of Proposition 8, which would ban gay marriage in California, released an ad, pictured above. The ad claims that under current law, gay marriage would be promoted in public schools and warned that churches which opposed same-sex unions would lose their tax exempt status. Richard Peterson, a law professor at Pepperdine University School of Law, appears in the ad, citing a newspaper article alluding to the loss of tax-exempt status for those churches that oppose same-sex marriage.
There’s just one problem: the author of the piece said no such thing. Robert DeKoven, a law professor at California Western School of Law, claims that the ad “completely distorted” his position. He said:
I never, ever, ever said anything about if churches do not perform same-sex marriages that you’ll lose your tax-exempt status.
DeKoven, who has never been contacted by the Yes on 8 campaign or Professor Peterson, authored an op-ed piece for the July 3 edition of the Gay & Lesbian Times entitled “Anti-Gay Clergy Should Fear Backlash.” Despite the title, DeKoven was not arguing that there might be tax consequences for those churches who oppose gay marriage; instead, he was arguing that it was not fair to allow tax deductions for donations to churches which are political but not allow tax deductions for donations to secular groups that are overtly political. That argument makes sense.
Issue advocacy on its face does not put tax-exempt status at risk: it depends on the facts and circumstances. For example, the president of the Church of Latter Day Saints (LDS) issuance of a letter “from the pulpit” as was indicated in DeKoven’s piece, urging members to donate “means and time” to pass Proposition 8 is likely just a matter of issue advocacy. And to be clear, tax-exempt charitable organizations may take positions on public policy issues, even for those issues on which candidates have taken differing positions. However, encouraging voters to get behind an issue needs to be interpreted as simply that and not as intervention in a particular candidate’s campaign.
Even if a message from the charitable organization does not expressly encourage a vote for or against a specific candidate, there is a risk of violating the ban on political campaigning by a charitable group if the message appears to favor or oppose a candidate. That might include, for example, adding photos or statements from candidates in issue advocacy campaigns; directing voters to a particular candidate’s website; and literature that touts one candidate’s record on an issue. But simply advocating an issue is not a violation of the prohibition against politicking.
There is a fine line – and it’s clear to me that DeKoven was not implying that the line had been crossed in this circumstance. However, Professor Peterson and the folks at Yes to 8 apparently saw this as an opportunity to frighten taxpayers into believing that they couldn’t speak out against gay marriage under the current law. That’s just plain nonsense. It is short-sighted and narrow-minded of Professor Peterson to participate in such an ad campaign without arming himself with the facts – and if he had armed himself with the facts and moved ahead, shame on him.
Professor Peterson has not responded publicly to the criticisms against him. In the meantime, Pepperdine University School of Law has asked the Yes on 8 campaign to remove the Pepperdine affiliation from the ads; the campaign has not agreed to do so.
Funny. If the law actually were as Peterson has attempted to imply, he would have put Pepperdine’s tax-exempt charitable status at risk for what appears to be taking a very public stance on a political issue… Only, Professor, that’s not the case, now is it?
I personally don’t care a whole lot about this issue in regards to the religious aspects, but many do. If gays get married and have the same legal rights as Hetro’s, it doesn’t change life much for me. Gay rights groups claim that they want the same legal protections and tax benefits of straight couples and that is why they want gay marriage.
That may be true but Gays need to admit why they really want this so called right. They want it because it is the next step towards acceptance. We have been taught tolerance and gays definitely get that in society today. Now it is time for them to take it one step further. Tolerance is great but being tolerated still leaves a bad taste in their mouth’s at the end of the day because there are people like myself who will never accept it as being normal. I tolerate gays and their lifestyle and treat them with the respect any human being deserves. Gays want marriage to help normalize their lifestyle. They want to be accepted. Tolerance is not enough for them anymore because they want people to accept who they are and the lifestyle they have chosen. They don’t want to be thought of as abnormal or deviant, even if they are openly tolerated and left alone.
Unfortunately for gays, society is over 95% straight and if only 5% are gay ( probably less), then by definition they are not the norm. Marriage will not change that for them and marriage will not make their lifestyle normal.
Fear breeds hatred. Creating fear is the purpose behind the ad. Since there is nothing scary in reality in gay persons getting married, people have to make something up. What bothers me is that I live with so many people in this country who are so ready to believe any hateful, fearful thing they are told. Why don’t people investigate? Do research? Come to a rational conclusion that isn’t based on pure emotion? It’s frustrating.
Rebecca, you’re absolutely right regarding the fear.
And here’s what ads like this are betting on: that you’ll buy it. Why do you think they asked a law professor to do the narration as opposed to Joe Smith? Because they think it somehow makes viewers feel that they’re right. No need to investigate or do research because a law professor said so. It doesn’t matter that he has blatantly misrepresented someone else’s work…
That’s my problem with many political ads – on both sides of the spectrum. It’s all ramped up “facts” and carefully chosen sound bites. It’s never about the real issues.
All of these are missing the point by focusing on the merits of gay marriage by itself. I’m not a lawyer, but here’s how I think the law should be interpreted. Churches should lose their tax exempt status, if they preach a position on whether gay marriage should be legal, at least in the context of a political campaign. The legality of gay marriage is a political not a religious issue. They should not lose their tax exempt status if they merely use the pulpit to preach that gay marriage is immoral. That is a moral issue, and to people who are religious, moral issues can be reasonably seen as religious issues.
Political organizations, in fact, are not tax-exempt, although there are some political organizations that use various subterfuges to get around this for at least part of their activities, often calling them “education funds”, when the education is really advocacy.
Of course, there are also left-wing churches that preach from the pulpit. (Rev. Wright anyone?) There are even some that preach in favor of legalizing gay marriage. And some of them are even engaged in illegal activities, such as harboring illegal immigrants. There is just as much reason to remove their tax-exempt status.
PS: I am neutral on the issue of gay marriage itself.
And I’m not sure if churches should be tax-exempt in the first place.
And by tax-exempt I mean the deductibility of contributions. Of course, churches do not make a profit, so their profits cannot be taxed.
thanks so much kelly for making the time and effort to post this well-informed counter to Peterson’s assertions, which, as you note, play on fear and which are untrue and which, unfortunately, seem to be working.
alas — were it true what @Chris says in the comment above, that “gays definitely get tolerance” in society today, this fear-based tactic would not work so well, and we would not have to see so many truly mean reactions and attitudes towards gay people during this battle.