1. Children in public schools will have to be taught that same-sex marriage is just as good as traditional marriage.

     The California Education Code already requires that health education classes instruct children about marriage. (#51890)

     Therefore, unless Proposition 8 passes, children will be taught that marriage is between any two adults regardless of gender. There will be serious clashes between the secular school system and the right of parents to teach their children their own values and beliefs.

Response: This is untrue. California Education Code 51890 provides that “pupils will receive instruction to aid them in making decisions in matters of personal, family, and community health.” The focus is on health. The statute provides for community participation, including lectures by practicing professional health and safety personnel from the community. Things that are to be taught include, for example, drug use and misuse, nutrition, exercise, diseases and disorders, environmental health and safety, as well as “family health and child development, including the legal and financial aspects and responsibilities of marriage and parenthood.”

Mr. Thurston’s argument that “the focus is on health” is a straw man.  No one is disputing the “focus” of this statute or its merits.  It is completely irrelevant that the statute “provides for community participation,” etc. 

 By the clear language of the statute itself: “Pupils will receive instruction to aid them in making decisions in matters of personal, family, and community health, to include the following subjects: … (D) Family health … including the legal and financial aspects and responsibilities of marriage and parenthood.”  Indeed, Mr. Thurston does not dispute this statutory language.  Thus, the “Six Consequences” document is accurate on this point, not "untrue,” as asserted by Mr. Thurston.

 Mr. Thurston’s arguments are misleading because he implies that because this language is within a section dealing with “health” that it will not be used as a loophole to push the homosexual agenda.  This view is naïve at best, given the position taken by the California Teachers Association, its 1.25 million dollar donation to “No on 8,”events in Massachusetts, the surprise first-grade “field trip” to a Lesbian wedding in San Francisco, an elementary school’s surprise “gay day,” etc.  The document Mr. Thurston attacks is merely connecting the dots, just as intelligent voters must do. 

Another section of the Education Code (51933) deals with comprehensive sexual health education and HIV/AIDS prevention. It provides that instruction shall be age appropriate and medically accurate, shall teach “respect for marriage and committed relationships,” and shall encourage a pupil to communicate with his or her parents about human sexuality.

This portion of Mr. Thurston’s argument does not support his own assertion.  Indeed, section 51933 of the California Education Code provides a second justification for teaching school children that “same sex marriage is just as good as traditional marriage.”  These two loopholes are all that is needed for those pushing the gay rights agenda.  The Massachusetts legislature did not pass a law explicitly calling for homosexual education of school children; it is always through "health" statutes that such an agenda is advanced. 

 By emphasizing “age appropriate,” Mr. Thurston appears to imply that parents shouldn’t have objections to teaching about gay marriage because teachers can be trusted to bring it down to the right level.  But that is the whole problem!  If Prop. 8 fails, teachers providing comprehensive sexual health education will be required to provide effective, age-appropriate teaching (read indoctrination) on this topic.  This is insidious, not comforting.  A teacher reading a story from a picture book to her Kindergarten class may be “age appropriate,” but the problem is when California requires the teacher to read a story book entitled “King and King,” for example.

Mr. Thurston’s argument is misleading because it omits highly relevant passages of 51933: 

    (4) Instruction and materials shall be appropriate for use with pupils of all races, genders, sexual orientations, ethnic and cultural backgrounds, and pupils with disabilities.
         * * *
(d) If a school district elects to offer comprehensive sexual health education pursuant to subdivision (a), whether taught by school district personnel or outside consultants, the school district shall comply with the following:
   (1) Instruction and materials may not teach or promote religious doctrine.
   (2) Instruction and materials may not reflect or promote bias against any person on the basis of any category protected by Section 220.

220.  No person shall be subjected to discrimination on the basis of disability, gender, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance or enrolls pupils who receive state student financial aid.

Therefore, no provision of the Education Code requires any teacher to teach that same-sex marriage is “just as good” as traditional marriage. Teachers are to teach respect for marriage and committed relationships, and Proposition 8 will not change this law.

The statutes included above demonstrate that contrary to Mr. Thurston’s assertion, California teachers are required* to teach about marriage, and these requirements are found under the rubric of “health” education. 

 Moreover, this fact, combined with the law’s own non-discrimination requirements (51933(d)(2), 202) and built-in bias against religious doctrine (51933(d)(1)) will lead to “serious clashes between the secular school system and the right of parents to teach their children their own values and beliefs.”

 If the definition of “marriage” in California is not restored by passage of Proposition 8 to “between one man and one woman,” the current, judicially mandated re-definition will stand and children will be taught that “marriage is between any two adults regardless of gender.”

 *See this link and this document for further discussion of how 96% of California schools opt-in to “comprehensive” health education, subjecting them to the requirements discussed here.

2. Churches may be sued over their tax exempt status if they refuse to allow same-sex marriage ceremonies in their religious buildings open to the public. Ask whether your pastor, priest, minister, bishop, or rabbi is ready to perform such marriages in your chapels and sanctuaries.

Response: This false “consequence” is based on the misrepresentation of a case in New Jersey involving an association affiliated with the Methodist Church. In considering that case, it is important to remember that New Jersey does not permit gay marriage, so that case had nothing to do with Proposition 8.

 What was the New Jersey case about? The Ocean Grove Camp Meeting Association (OGCMA), a Methodist organization, had taken advantage of a New Jersey law granting a state property tax exemption for a pavilion in the seaside town of Ocean Grove that was dedicated for public use. Note that the case did not involve income tax exemptions and note that the purpose for giving the exemption in the first place was to reward organizations for opening their buildings and facilities for public use.

 The property in question was a boardwalk pavilion open to the public. “Bands play there. Children skateboard through it. Tourists enjoy the shade. It’s even been used for debates and Civil War re-enactments.”3 It was also available to be reserved for marriage ceremonies by people of any faith. Nevertheless, the OGCMA wanted to prohibit a gay commitment ceremony (not a marriage ceremony) from being held in the pavilion. The New Jersey real estate commission ruled that if OGCMA intended to claim a property tax exemption for a building open to the public, they could not discriminate. Seen in this light, it was a sensible ruling. Implicit in the ruling is that the group could discriminate if they ceased to claim a property tax exemption for a public facility. It is important to note that this ruling pertained only to the pavilion, which constituted a mere one percent of the property the OGCMA owned. The total amount of additional tax assessed was $200. The OGCMA continues to receive a property tax exemption for the remaining 99% of its property.

 This case has nothing at all to do with any Mormon, Catholic or any other church’s chapel or sanctuary that is used for religious purposes. It has nothing to do with any church’s income tax exemption. To my knowledge, the Mormon Church has never sought to take advantage of a property tax exemption similar to the New Jersey exemption and likely never would.

 Mr. Thurston’s argument here is strained because it is impossible to dispute that churches may be sued over their tax exempt status in the described circumstance.  This becomes more and more probable with each judicial activist decision, because gay activists will continue to prod at the edges of the law when they sense a sympathetic judge or appeals panel is willing to change the law for their cause.  The New Jersey case is only one example.  Another example is the 1983 Bob Jones case that dealt with federal tax exemptions.  Other examples are provided in these marriage law digests, and articles discussing the trends can be found here and in this summary.

 Mr. Thurston asserts that this potential consequence is “false” because he can point out differences in the facts of the New Jersey case and a posited hypothetical case.  But Mr. Thurston’s argument gets lost in the weeds of his own creation.

 Mr. Thurston’s argument is misleading because it focuses so vigorously on the facts of the New Jersey case, even though that case is not even explicitly cited in the argument he is attempting to discredit!  Thus, the New Jersey case is used as a straw man--a surrogate rhetorical punching bag. 

The California Supreme Court ruling on gay marriage cannot have any federal tax consequences, and the Court so noted explicitly in its decision. The Supreme Court also noted that its ruling would not require any priest, rabbi or minister to perform gay marriages, which should be self-evident because of the First Amendment’s guarantee of freedom of religion.

Mr. Thurston apparently has great faith in the California Supreme Court’s assurances that its decision won’t have federal tax consequences and that its ruling could not require religious leaders to perform gay marriages.  Is it implausible to predict that there will be future rulings that further erode religious freedoms, just as this ruling does?

 As stated in the dissent dissent by Justices Baxter and Chin, “.....a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves. Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right, immune from the ordinary process of legislative consideration.  The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.”

 Mr. Thurston shows great faith in the “First Amendment’s guarantee of freedom of religion.”  But don’t the cases summarized at the links above provide room for doubt that the courts will defend this “guarantee” with the same vigor that they have attacked the institution of marriage? The question is legitimate, based on what has already happened.

3.  Religious adoption agencies will be challenged by government agencies to give up their long-held right to place children only in homes with both a mother and a father. Catholic Charities in Boston already closed its doors in Massachusetts because courts legalized same-sex marriage there.

Response: Another misrepresentation. To begin with, it should be noted that Catholic Charities in Boston was not forced to close its doors—indeed it is still very active. (See its website at www.ccab.org.) Rather, Catholic Charities voluntarily ceased providing adoption service in Massachusetts. According to the Boston Globe, Catholic Charities elected to close its doors in protest over the legalization of gay marriage in Massachusetts and because it was reluctant to undertake a lawsuit that might be lost.

 LDS Family Services still operates in Massachusetts, as it does in California. There are several differences between LDSFS and Catholic Charities. LDSFS does not take federal or state funds; Catholic Charities does. LDSFS facilitates only voluntary adoptions and permits the birth mother to approve the adoptive parents. Catholic Charities handled non-voluntary adoptions (where the state seizes the children) and normally did not accommodate birth mother approval. Catholic Charities had contracts with the state and was, in effect, acting as an agent of the state. LDSFS does not. To date, LDS Family Services has never been forced to place any children with a gay couple, and has never been sued for not doing so.

 If this situation ever faces a legal challenge in California, it will not matter whether Proposition 8 passes because California already has on its books (and has for several years) laws granting domestic partners (homosexual and heterosexual) the same civil rights as married couples. This is a point that many people seem not to understand.  Here is the language of just one California statute: “Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.”

 Therefore, the passage or failure of Proposition 8 will have no effect on the placement of orphans with gay couples in California.

Here Mr. Thurston pounces on a short summary of the facts because the summary, by its very nature, economizes words.  Clearly the context is religious adoption agencies, so Mr. Thurston’s point that Catholic Charities still has non-adoption activities in Boston is irrelevant.  Granted, if Mr. Thurston was responding to a carefully-crafted, 30-page litigation brief, such nit-picking might be appropriate.

 Nevertheless, it is misleading for Mr. Thurston to characterize Catholic Charities’ cessation of adoption service in Massachusetts as “voluntary.”  A change in Massachusetts' discrimination laws, coupled with the legalization of homosexual marriage, was the direct cause of this “voluntary” cessation; after the change in the law, the only legal alternative was for Catholic Charities to violate its strongly held religious beliefs.  The more appropriate word here is coerced, not voluntary.

 Mr. Thurston’s discussion of the differences between LDSFS and Catholic Charities may be true, but it is irrelevant to the actual statement: “religious adoption agencies will be challenged.”  Just because LDSFS may be able to structure its operations differently, refuse state funding, etc., does not undermine the larger point.  Indeed, no savvy church member would be naïve enough to ignore the trend.

 Mr. Thurston again sets up a straw man, claiming that “many people seem not to understand” that gay couples can already adopt.  But just because the law already allows this in California does not mean that “it will not matter whether Proposition 8 passes.”  If the California Constitution itself recognizes a specific definition of “marriage” that is different from a “domestic partnership,” it is much more difficult to sue churches for opting to only provide adoption services to married couples.  Failure of Proposition 8 provides one more argument to those who would sue churches for “discriminating.”

 Even Mr. Thurston’s conclusion, that “passage or failure of Proposition 8 will have no effect on the placement of orphans with gay couples in California,” is misleading because it does not address the original point Thurston sets out to rebut.  Moreover, if the government considers it “discriminatory” to only assist man-woman couples with adoption, it is naïve, at best, to believe that religious adoption agencies in California will not one day be challenged to stop the alleged discrimination.  The question is not if this will happen, but when; the day will likely come much sooner if Proposition 8 fails.

4. Religions that sponsor private schools with married student housing may be required to provide housing for same-sex couples, even if counter to church doctrine, or risk lawsuits over tax exemptions and related benefits.

            Response: This claim relates to an experience at Yeshiva University in New York. Gay students were eligible for University housing, but their partners were not able to join them because they did not have marriage certificates. It should be noted that Yeshiva University (despite its name) is chartered as a nonsectarian institution, enabling it to receive state and federal funding. The New York court found that Yeshiva was discriminating against the students based on their sexual orientation—not their marital status. The ruling was based on New York City non-discrimination laws.

 California’s existing non-discrimination laws give all registered domestic partners, whether heterosexual or homosexual, the right of equal access to family housing. To date, however, no California private religious school has been forced to comply with this law. Neither the passage nor the failure of Proposition 8 will have any bearing on the law relating to family student housing in California.

 The gay marriage problem will not arise at BYU and other Church universities because engaging in homosexual activity is a violation of the honor code and is a basis for expulsion from the University. These rules will not be overturned merely because

California recognizes gay marriages, any more than they have been because Massachusetts, Canada and many European nations recognize them.

Once again, Mr. Thurston appears to set up a straw man by implying that the only support for this statement comes from the Yeshiva University case. 

 As with point 2 above, Mr. Thurston’s argument here is strained because it is impossible to dispute that religions that sponsor private schools with married student housing may be required to provide housing for same-sex couples.  This becomes more and more probable with each judicial activist decision, because gay activists will continue to prod at the edges of the law when they sense a sympathetic judge or appeals panel is willing to change the law for their cause.  For numerous examples of this phenomenon, see these marriage law digests.

 Mr. Thurston concedes that “California’s existing non-discrimination laws give all registered domestic partners, whether heterosexual or homosexual, the right to equal access to family housing.”  Thus, the legal framework for a suit is already in place.  Notwithstanding Mr. Thurston’s comment that “no California private religious school has [yet] been forced to comply with this law,” this could change in a single day--at the whim of a well-funded gay activist group.

Moreover, just because the discrimination laws in California already threaten private school married housing does not mean that it will not matter whether Proposition 8 passes.  If the California Constitution itself recognizes a specific definition of “marriage” that is different from a “domestic partnership,” it is much more difficult to sue.  Indeed, it is likely the passage of Prop. 22 that has insulated private schools from this consequence so far.  Failure of Proposition 8 removes this barrier to those who would sue for “discrimination.”

 Mr. Thurston glibly assures that “the gay marriage problem will not arise at BYU,” but if BYU were in California, where the government considers it “discriminatory” to deny homosexual couples the “right of equal access to family housing,” it is naïve, at best, to believe that it would not one day be targeted to stop the alleged discrimination.

5. Ministers who preach against same-sex marriages may be sued for hate speech and risk government fines. It already happened in Canada, a country that legalized gay marriage.  A recent California court held that municipal employees may not say: “traditional marriage,” or “family values” because, after the same-sex marriage case, it is “hate speech.”

Response: Of course, anyone can be “sued” for anything, but no minister has been convicted of a crime in Canada or the United States for preaching against same-sex marriages. The Owens case, on which this statement is based, was brought well before gay marriage was legal in Canada and did not involve a minister, but a private citizen. In that case, a man named Hugh Owens produced bumper stickers and took out an ad that depicted two stick figures holding hands, covered by a circle and a slash, along with a reference to a passage in Leviticus that says that a man engaging in homosexual activity “shall surely be put to death. Their blood shall be upon them.”

 The lower court ruled that this amounted to hate speech, but the decision was overturned on review. The current Canadian law on hate propaganda excludes any speech if it is spoken during a private conversation or if the person uttering the speech “is attempting in good faith to establish by argument an opinion on a religious subject.”  Thus, even ministers who preach against same‐sex marriages in Canada have no risk of legal liability or government fines.  This would never be an issue in the United States because we have far more liberal freedom of speech and religion laws than does Canada.  There have been no hate speech lawsuits in Massachusetts, which has been a gay marriage state for four years.

Mr. Thurston offers the assurance that “no minister has been convicted of a crime in Canada or the United States for preaching against same-sex marriage.”  This is hardly reassuring, given that so far, Massachusetts and now California are the only two states to mandate acceptance of gay marriage.  This is a brand new phenomenon and the combination of well-funded gay advocacy groups, sympathetic, activist courts, and ready-made anti-discrimination laws and hate-speech codes does not bode well.

 If the Owens case was brought before Canada legalized same-sex marriage, how much more likely would it be to happen now that the Canadian government has thrown its weight behind genderless marriage?  Canadian speech codes are definitely less liberal than those of the U.S. (so far, at least), as the case of Mark Steyn underscores.  The parallel legal system of the “human rights commissions” in Canada belie Mr. Thurston’s assertion that “ministers who preach against same-ex marriages in Canada have no risk of legal liability or government fines.” 

 Mr. Thurston’s glib assurance that “this would never be an issue in the United States” because we have more liberal laws and there have been no hate speech lawsuits in Massachusetts in four years is not comforting.  In any case, it is indisputable that while anti-discrimination and “hate-speech” laws are on the books, failure of Proposition 8 puts those who preach traditional marriage in the cross-hairs of anyone wishing to push the gay cause.  At the very least, the statement that ministers “may be sued” is unassailable.

The description of the recent California case is another fabrication. This case is Good News Employee Association v. Hicks, which was decided before the Supreme Court legalized gay marriages and so it, too, has nothing to do with Proposition 8. The plaintiffs in that case were evangelical Christians (not homosexuals) who posted flyers [sic] around the offices of the Oakland Community and Economic Development Agency promoting their “Good News Association” and calling on those who read the flyer [sic] to “preserve our workplace with integrity with respect for the natural family, marriage and family values.” In other words, this group was promoting the idea of ridding their workplace of gay people—a blatantly homophobic message and highly offensive not only to several gay people who worked there but to heterosexual co-workers as well. The supervisors removed the flyers [sic]. The Good News people sued, claiming their rights of free speech were violated. The court found that the agency was entitled to eliminate the workplace disruption the flyers [sic] were causing and noted that there were many other ways for this group to promote their message without resorting to such offensive tactics.

 This case does not hold that municipal employees are prohibited from saying “traditional marriage” or “family values” and it has nothing to do with gay marriage, or ministers preaching, or Proposition 8. Indeed, the court specifically found that there were many other ways for these people to get their message out without disrupting the workplace by creating an atmosphere of persecution.

Mr. Thurston is wrong to assert that the description of the California case is a “fabrication.”  Once again, the creators of the document attacked by Mr. Thurston did not attempt to provide all the facts; as with all judge-made law, the holding is rarely limited to only the facts of the case at hand as later cases attempt to distill its meaning.  Mr. Thurston’s lawyering technique of distinguishing on the facts distorts the original point rather than meeting it head-on.

 The fact that this case preceded the judicial redefinition of marriage underscores the point that failure of Proposition 8 will likely lead to more cases like it.  Mr. Thurston’s arguments seem conveniently blind to the clear judicial trend.

 If Mr. Thurston really believes that posting fliers with statements encouraging preservation of a workplace “with integrity with respect for the natural family, marriage and family values” amounts to “promoting the idea of ridding their workplace of gay people,” I cannot understand why he would consider The Family: A Proclamation To the World to be acceptable.  Yet Mr. Thurston refers to himself as an active LDS church member.  Speaking up for the natural family, marriage, and family values is emphatically not homophobic, as church leaders constantly emphasize.

 I concede that Mr. Thurston has found some imprecise language.  It is probably not precise to say that the Court held the employees may not say “traditional marriage” or “family values.”  It also may be imprecise to link the holding of this case directly to the same-sex marriage case.  The recently-retired litigator from a “global law firm” scores a point.

6. It will cost you money. This change in the definition of marriage will bring a cascade of lawsuits, including some already lost (e.g., photographers cannot now refuse to photograph gay marriages, doctors cannot refuse to perform artificial insemination of gays even given other willing doctors). Even if courts eventually find in favor of a defender of traditional marriage (highly improbable given today’s activist judges), think of the money – your money – that will be spent on such legal battles.

Response: The argument concerning cost is fallacious and calculated to engender fear. In actuality, the net fiscal effect of Proposition 8 will be an influx of revenue to California because of the anticipated increase in marriage ceremonies and the related boon to the economy. The change in the definition of marriage will not bring a “cascade of lawsuits” because heterosexual and homosexual registered domestic partners already have all the rights of married couples in California. None of the lawsuits alluded to in this paragraph has anything to do with gay marriage.  The wedding photographer case was in New Mexico, a state that has no gay marriage law. The medical doctor case was in California, but was based on our existing non-discrimination laws and would not be affected one way or the other by the passage of Proposition 8.

Mr. Thurston charges that this argument is “calculated to engender fear.”  Such a charge is improper logically because it presumes to know the mind of the arguer.  Even if it were true, there are some things that should be feared and avoided—and the consequences of societal rejection of traditional marriage are among them.  Mr. Thurston improperly implies that so-called “fear mongering” is always and inherently wrong. 

 Mr. Thurston’s analysis of the net fiscal effect of Proposition 8 is by his own admission speculative because it is based on “anticipated increase in marriage ceremonies and the related boon to the economy.”  Moreover, Mr. Thurston’s assertions regarding fiscal affect mimic those of the “No on Prop 8” campaign.  Thus, it is possible that Mr. Thurston’s own motives are not actually “to be of service in helping our Church avoid charges of using falsehoods to gain a political victory,” but instead to defeat Proposition 8.

 It is blatantly false to state that “none of the lawsuits alluded to in this paragraph has anything to do with gay marriage.”  The New Mexico case related to a lesbian “commitment ceremony.”  If New Mexico were to follow California’s lead and change the definition of marriage, would the lesbian couple’s case be stronger or weaker?

In the California case, a medical clinic that provided intrauterine insemination (IUI) to its patients, refused to treat one of them because she was a lesbian. California’s broad anti-discrimination laws expressly ban discrimination by any business establishment that offers to the public “accommodations, advantages, facilities,

privileges, or services.”  This statute bans discrimination against individual heterosexuals and homosexuals alike, as well as married people and domestic partners. Therefore, the clinic had the option of either having a doctor on staff who would perform IUI services on a non-discriminatory basis, or cease performing the services at all.  Whether we agree with this decision or not, the fact is that the law upon which this ruling was based will not be affected by the passage of Proposition 8, so there is no “consequence” if the proposition fails.

Mr. Thurston misstates the facts of the case.  Dr. Brody actually claims that her “religious beliefs preclude her from active participation in medically causing the pregnancy of any unmarried woman, and therefore her refusal to perform IUI for Benitez was based on Benitez’s marital status, not her sexual orientation.”  (See footnote 1).  Thus, Mr. Thurston has chosen to take the plaintiff’s version of a disputed fact, namely that a doctor refused to treat the lesbian “because she was a lesbian.”  This is a misleading lawyer tactic.  Moreover, Mr. Thurston omits the fact that the lesbian patient was “referred to a physician outside North Coast’s medical practice, Dr. Michael Kettle.” (Id.)  Dr. Kettle provided the artificial insemination services sought.

 Mr. Thurston’s arguments once again appear to compartmentalize the law in a misleading way.  Just because this case was based on the California Unruh Act does not mean that future cases will not also use the precedent set by the marriage case to bolster a similar result.  No competent lawyer would fail to cite both legal precedents, if possible. Moreover, just because that specific law is not technically “affected” by Proposition 8 does not mean the ultimate legal outcome is not affected by further entrenching the concept that where religious beliefs conflict with California’s definitions of marriage, State power trumps freedom of conscience.  

The gratuitous comment concerning “activist judges” seems to be framed as an appeal to fear and paranoia. In fact, however, today’s justices on both the California Supreme Court and the United States Supreme Court can hardly be called “activist.”

 Six of the seven justices of the California Supreme Court were appointed by Republican governors; seven of the nine justices of the United States Supreme Court were appointed by Republican presidents. Most legal scholars would agree that they are moderate to conservative in their leanings and have a healthy respect for constitutional principles. The California Supreme Court has a high reputation throughout the land. A recent study indicates that its decisions are approved of and followed by out-of-state courts far more than are the decisions of any other supreme court in the United States.

 Ronald M. George, the chief justice of the California Supreme Court, who wrote the opinion for the majority in the marriage cases, is a judicial moderate who was never considered to be an activist judge. He has an outstanding scholarly background (Princeton and Stanford) and worked as a prosecutor immediately after graduating from law school. He was appointed a Superior Court judge at the early age of 32 by Republican Governor Ronald Reagan. Though young, he quickly gained a reputation as fair-minded, insightful, hard working and tough on crime. He was widely praised for his handling of the difficult trial of the Hillside Strangler, Angelo Buono. He rose in the ranks of judges until he was appointed to the California Supreme Court by Republican Governor Pete Wilson.

Mr. Thurston’s recitation of legal pedigrees and consensus of legal scholars that supreme court justices are not “activist” is an improper “appeal to authority,” a logical fallacy.  Mr. Thurston’s own words reveal these logical flaws:

“Most legal scholars would agree…”
“… high reputation throughout the land.”
“Though young, he quickly gained a reputation as…”
“He was widely praised for …”

These are improper modes of rhetoric and indicate highly illogical argumentation.**

The hard evidence lies in the opinion itself.  If the honorable Justice Ronald George had only drafted this single opinion in his whole judicial career, or if it is only the latest in a long line of opinions, that does not change the nature of this decision.

 As stated in the dissent dissent by Justices Baxter and Chin, “.....a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves. Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right, immune from the ordinary process of legislative consideration.  The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.”

For a more thorough analysis, see this memo by the Heritage Foundation.

**Mr. Thurston's arguments do manage to avoid the common logical fallacy of attacking the character of the one making the arguments, but perhaps Thurston would have done so, if he had been given the opportunity.  I base this speculation on his barb chiding the 'Yes on 8' campaign for distributing six short talking points without indicating the author.

As Justice George considered the marriage cases, the decision “weighed heavily” on his mind. He remembered a long ago trip he made with his European immigrant parents through the American South. There, the signs warning “No Negro” or “No colored” left “quite an indelible impression on me,” he recalled. As a judicial conservative, it would have been safest for him to vote against the petitioners and avoid the backlash that he knew would come. But, as he put it in an interview with the Los Angeles Times, “I think there are times when doing the right thing means not playing it safe.”

Mr. Thurston’s arguments descend into pure blather when they start describing Justice George’s state of mind, memories of his parents, an interview with the L.A. times, etc. 

 This is irrelevant obfuscation—a pure emotional appeal.

It is disingenuous to argue that it would have somehow been safer or more courageous for Justice Ronald George to vote for upholding Proposition 22.  As an effectively "tenured" judge who lives and works in San Fransisco, one of the most far-left places on earth, his vote was not an act of courage but of capitulation to the elites among whom he lives and works.  Fawning interviews such as the one with the L.A. Times support this point.

The function of judges is to evaluate cases before them and apply constitutional principles to assure that minorities, as well as majorities, receive justice. In controversial cases they are bound to anger some portion of the electorate regardless of how they vote. Their unenviable job is to ignore public opinion and apply the law as they see it. Some decisions are so difficult that reasonable minds can differ. The Supreme Court decision in the marriage cases was that sort of decision. Nevertheless, four of the seven justices on what is considered a moderate to conservative court agreed on the verdict that was rendered. This decision cannot be written off as merely the whim of “activist judges.”

The function of judges is not only to “assure that minorities, as well as majorities, receive justice,” as Mr. Thurston asserts.  Indeed, activist judges always use this reasoning to justify their activism.  Faithful application of the law is at least as important as a judge’s subjective idea of “justice.”

 Mr. Thurston never addresses the fundamental point that in 2000, 61% of the electorate passed Proposition 22, and in 2008, four judges found that law to be “unconstitutional.”  This is perhaps the most blatant kind of judicial activism, where judges find a new “right” in the constitution and change the law in the name of “justice,” while ignoring the will of the people.  In fact, the judges are substituting their policy preferences for those of the people of California.