Law Professors Clash Over Gay Marriage, Churches' Tax-Exempt Status

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Supporters of a constitutional ban on gay marriage released their second television ad Wednesday featuring a Pepperdine University School of Law professor offering disputed predictions about what will happen if Proposition 8 fails.

The commercial depicts a pig-tailed girl excitedly telling her horrified mother how she learned in school "that a prince can marry a prince and I can marry a princess." Richard Peterson then appears on screen.

"Think it can't happen?" the assistant professor asks. "It's already happened" in Massachusetts, the first state to legalize same-sex marriages, Peterson says. An unseen narrator then warns parents that they'll be legally helpless to keep the topic of gay marriage out of California's public school curricula if Prop 8 fails.

Hilary McLean, spokeswoman for California's superintendent of schools, Jack O'Connell, said the ad's claims are false.

"There's nothing in the Education Code that requires schools to teach about marriage," McLean said. In schools that do provide instruction about marriage, locally elected school boards determine the content, she said.

The ad is similar to one released last week that shows May 2008 footage of a giddy San Francisco Mayor Gavin Newsom telling a supportive crowd that gay marriage "is gonna happen whether you like it or not." The spot also features Peterson repeating the claim about gay marriage being taught in schools and warning that churches could lose their tax-exempt status for opposing same-sex unions.

But the author of a newspaper op-ed cited in the ad as the basis for Peterson's comments said the pro-Prop 8 campaign "completely distorted" his position.

"I never, ever, ever said anything about if churches do not perform same-sex marriages that you'll lose your tax-exempt status," said Robert DeKoven, a professor at California Western School of Law in San Diego. DeKoven's commentary in the July 3 edition of the Gay & Lesbian Times argues that it's unfair to give tax breaks to politically active religious institutions but not to individual activists and donors.

DeKoven said he was never contacted by the Yes on 8 campaign or Peterson.

"Frankly I'm shocked that he would be involved in a political commercial with such distortions in it," DeKoven said.

Ellen Aprill, a tax law professor at Loyola Law School, called Peterson's claim "a bit of fear mongering." Challenges to a church's tax-exempt status based solely on its stance on gay marriage would probably not survive in federal or state courts, she said.

"We have many places where we recognize religious organizations' right to free expression," Aprill said.

Peterson, listed on Pepperdine's Web site as director of the school's Special Education Advocacy Clinic, did not return a phone message left Wednesday. Neither did two spokesmen in the university's media relations department.

After the first commercial aired, campus officials reportedly asked the Yes on 8 campaign to remove Peterson's Pepperdine affiliation from the ad. An unsigned statement on the school's Web site says the school "remains neutral" on political candidates or initiatives.

The latest ad again identifies Peterson as a Pepperdine University School of Law professor, although a smaller font of script says his title is used "for identification purposes only."

A Yes on 8 spokesman said the spots are being aired statewide.

Expect to see more television ads debating Prop 8 in the next four weeks. Initiative supporters say they have raised more than $25 million for their campaign. Prop 8 opponents reported contributions totaling more than $16 million through Sept. 30, according to state records.

A Field poll on Sept. 18 showed that 55 percent of likely voters intended to vote no. But a SurveyUSA poll released Oct. 6 showed that 47 percent of respondents support Prop 8 while 42 percent are opposed.