Jim Brosnahan: A Debate With Myself on Proposition 8

Jim Brosnahan’s commentary was published today on Law.com.  Mr. Brosnahan is a member of the Equal Justice Society board of directors.
This is a one-sided debate that is addressed to you, Richard Peterson. You have listed yourself as a faculty member of Pepperdine University School of Law and you have, as is your right under the First Amendment, broadcast your views throughout the state in a pro-Proposition 8 advertisement. 
I wrote you a polite letter and I asked you to debate the measure but I have heard nothing and I take it you’re not going to respond. Therefore, if you don’t mind, I would like to express to you and anybody who reads this my thoughts on the points that you make and what’s wrong with them. In my view, your points are deeply flawed, misleading and, at times, an attempt to play on the fear of the viewer unfairly. 
Here goes: 
First, in California, when there are two people who are in love and who are committed to each other and want to spend the rest of their lives together, they should have, as declared under the law, every right to be married like anybody else. 
In support of Prop 8, you have falsely suggested that churches would have a tax problem if the initiative were not passed. Prop 8 should be defeated and its defeat will not cause any problem to churches. Churches have the protection of the First Amendment. They are free to marry or not marry anyone they wish and they would not lose their tax-exempt status as you suggest. Your point is unworthy of a law professor. 
In a similar vein of attempting to frighten people, you have suggested that somehow, if Prop 8 does not pass, little children will be taught about same-sex marriage in school, and that this will be bad for them. As others have pointed out, there is no requirement that schools have to teach anything about marriage, and furthermore, whatever is taught will be determined by the local school boards. 
I would have thought, sir, as I assume you are a religious person, that you understand and have indeed taught that God has made all of us, not just some of us. If we are in God’s image, then we must accept all of God’s children. This is fundamental and you should accept it. 
With regard to your religion, it has no place in the California Constitution, just as I am sure that you would not want me to enshrine my religion in our state’s laws. I not only respect your religion, but have, in court, defended people’s right to practice their religion. But it still should not be put into the Constitution. 
You have presented yourself as a law professor and indeed you are, but the courses you’ve taught seem to have nothing to do with the Constitution. You are not, as far as I can determine, a person who has studied the constitutional law of this country, taught it, or litigated it in cases involving it. Perhaps I am wrong, but your school Web site’s biography does not show it. Therefore, as you present yourself as an expert in the California Constitution, I would seriously question your credentials to do that. 
Your commercials attack the judges of California. This is despicable for a number of reasons. One, you are a law professor and you know better. Two, they cannot answer you, they cannot fight back because it’s against the rules that govern judges and you know that. More important is the fact that those judges did what they thought was right under the law and they deserve your respect and the respect of the people of California. They are learned, they are studious and they believe that people in California under the Constitution are entitled to equality and equal rights. It is one of the most fundamental constitutional principles that govern and indeed protects all of us. 
Equality itself involves the rights of citizens and the rights of minorities. As many Californians are minorities, this is fundamental to any understanding of our Constitution. As a lawyer, I am sure you have been told this many times. So the suggestion that the majority should be allowed to oppress a minority or to deny a minority equal protection is one that you ought to know is not governed by the California Constitution and should not be. 
Further, you should know that U.S. Supreme Court authority says that you can not write discrimination into a state constitution. There are cases that have held exactly that, which would mean that Prop 8 would be a dead letter. 
The history of marriage includes the history of using it as a weapon against unpopular or despised groups. I could give you many precedents and if we ever do debate, sir, I would be happy to suggest a few to you where certain groups were not allowed to marry as a manifestation of social opprobrium. This history has, for example, included race until it was struck down by the U.S. Supreme Court and the California Supreme Court. Before it was struck down, a white person could not marry a black person. That sad history should not be resurrected in Prop 8 and that is one of the reasons this initiative should be defeated. 
The people that you attempt to discriminate against are our friends, our neighbors, our colleagues. They are people who pay taxes, they are people who fight and die in our military, they serve in our police forces and our fire departments. In every way possible they participate in our society and our culture. They do everything that they can as citizens of California, and yet you want to put it in the Constitution that they be denied a fundamental right, the important right of marriage which is so central to one’s life. 
Sir, there is not enough love in this world and what love there is should be nurtured and not opposed by a state government and certainly by a state constitution. 
There are a lot more arguments but these will have to suffice. I am voting no on Prop 8 and I am asking anybody I can find to do the same. 
If you ever want to debate this issue before Nov. 4, please let me know. 
Very truly yours, 
Jim Brosnahan 
Jim Brosnahan is a senior partner at Morrison & Foerster in San Francisco. The views expressed are solely those of the author. As a matter of policy, Morrison & Foerster does not endorse political candidates or initiatives.

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