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?
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