Prop. 8: Volokh on the law. LA Times on the Westwood protest. LAist on the traffic.
Ellen P. Aprill, who is associate dean and professor of Tax Law at Loyola Law School, writes regarding support of Proposition 8:
The tax code distinguishes political campaigns from attempts to influence legislation.
All section 501(c)(3) organizations, including churches, are prohibited, at risk of losing exemption, from participating in political campaigns. In general, political campaigns are defined for this purpose as campaigns by candidates for elective office. (This prohibition was introduced by Lyndon Johnson in 1954, supposedly because he was annoyed about some newspaper ads that charities had run against him in his last campaign.) In a case called Branch Ministries, decided in May 2000, a federal appellate court upheld revocation of a church's exemption for running anti-Clinton newspaper ads. (The church had claimed that the political campaign prohibition violates the First Amendment.)
Tax-exempt charities cannot endorse or oppose any candidate, directly or indirectly, contribute any money or resources to any candidate's campaign or political party or rank candidates, even if the ranking is the result of neutral process. Particular care should be taken to avoid statements that name candidates or that comment on their positions at any official church function because they are likely to be treated as being the position of the organization. Such was the issue with All Saints Church in Pasadena.
While any involvement in a political campaign for elective office is prohibited, churches, like other charities, can participate in lobbying to a limited degree. For tax purposes, lobbying is distinguished from intervening in electoral politics. Lobbying is defined as an attempt to influence legislation, either directly through legislators or indirectly through grass root campaigns which ask citizens to contact their legislators. Taking positions on initiatives or propositions is considered lobbying, not political campaign activity. Under the tax code, lobbying by charitable organizations is permitted to a limited extent; it cannot be a substantial part of the organization's activities. The meaning of not substantial is not clear; it is a facts and circumstances test, but it is clear that it means more than dollars spent. (Organizations other than churches can choose to have their lobbying activities subject to specified dollar limits, but this option is not available to churches.) The Supreme Court has upheld the constitutionality of the lobbying limits, although the case did not involve a religious organization.
Thus, church opposition to or support of Proposition 8 does not involve prohibited campaign activity under the tax code. Churches are permitted to be involved in supporting or opposing propositions to some extent. The question will be whether the IRS decides to investigate any churches and makes a determination that any church's lobbying activities on this issue constituted a substantial part of its overall activities. Before beginning any such inquiry, however, the IRS will need to comply with the requirements of the Church Audit Act as to a high-level Treasury official recording in writing the reasonable basis for the inquiry and the church receiving notice of the inquiry.
Taxpayers do not have the option of supplementing IRS enforcement efforts by suing organizations to challenge their exempt status on this or any other basis. They lack standing to do so. See In re United States Catholic Conference, 885 F.2d 1020 (1989), cert. denied 495 U.S. 918 (1990). Taxpayers can, however, file a complaint with the IRS if they believe that the activities or operations of a tax-exempt organization are inconsistent with its tax-exempt status.
Family law practitioner Dianna Gould-Saltman writes:
I think Prop 8 simply accelerates the ultimate direction this issue has got to go and that is to the U.S. Supremes. Prop 8 just amends the California Constitution to say that a class of people (arguably based on an immutable characteristic) may be prohibited from exercising the right to marry each other. Since the state constitutions may not conflict with the fundamental rights conferred under the U.S. Constitution (including equal protection under the law), and the U.S. Constitution is the supreme law of the land, the amendment to the CA Constitution cannot stand.
The Federal Defense of Marriage Act is federal law that permits one state to discriminate with regard to the rights conferred by other states so that full faith and credit need not be honored. But that is a federal law (arguably also one which violates both equal protection and the 14th Amendment) and still does not supersede the U.S. Constitution as supreme.
While theoretically Prop 8 is a separate issue from the federal DOMA, when it gets to the U.S. Supremes, which I think it must, I suspect both issues will need to be addressed. No legitimate state interest can be served by denying the right to marry (or, just as bad, creating something separate and not quite equal to form a "less marriage" for gays and lesbians). The only interest which seems to be served is a religious one, which the First Amendment prohibits as the basis for the granting or denial of a fundamental right.
How the case gets there and when it gets there will be most interesting. I assume Justice Stevens will have his resignation on the president's desk on January 22nd. Ginsberg's may follow shortly. From there we'll see what President Obama is willing to put on the line for posterity.