Everyone remembers the opening salvo in the Prop. 8 campaign: a t.v. ad called “Whether You Like it or Not.” (Fall, 2008).

The ad featured Gavin Newsom, and then a Pepperdine law professor who predicted gay marriage would lead to church closures. In the background was Beyond the Briefs column titled “Anti-Gay Clergy Should Fear Backlash,” Gay & Lesbian Times, July 3, 2008.

I highly recommend everyone read Judge Vaughn R. Walker’s opinion in Perry v. Schwarzenegger.

Ted Olson introduced the t.v. ad into evidence at the Prop. 8 trial ( Plaintiffs’ Exhibit 0029) (Slip Op. at 108.) Judge Walker cited the ad in his finding that: “The campaign to pass Prop 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.”

The column discussed what Ted Olson’s masterful discovery proved —- that church officials used their resources for blatant political purposes, and that they engaged in falsities and hate to dupe voters into voting Yes on 8.

In doing so, churches may have jeopardized their non-profit status under California law, and their tax-exempt status under federal law. Without those tax-payer subsidies for charitable work, the churches collapse. It’s awful and none of us want it to happen. But now that this is public information, the U.S. Department of Justice and Attorney General Jerry Brown will certainly investigate to see if there was a violation of law.

There was nothing in that column to suggest that me or anyone planned on suing churches that refused to perform same-sex marriages. Or, that upon refusing to submit to our demands, we would then have churches lose their tax-exempt status.

If I had suggested such things, I would face disbarment for complete lunacy because the First Amendment protects churches against suits challenging religious exercise. Imagine a man suing the Catholic Church for gender discrimination because it won’t let men become nuns? And then, upon losing, seeking to remove the Church’s tax-exempt status? It’s absurd.

Olson’s discovery proved that the Yes of 8 Campaign involved a “network of 1700 pastors working with Protect Marriage in support of Prop. 8.” Slip. Op. at 59 finding 59 a-h;

A damning email reveals on pg. 89 (h) PX2403 “Attached to the email is a kit to be distributed to Christian voters through churches to help them promote Prop. 8.” The kits were prepared by the Family Research Council, certainly the most homophobic political group. An email warned that the Prop. 8 should remove all references to Family Research Council.

Walker cited trial testimony of Historian George Chauncey, who testified that the campaign television and print ads focused on protecting children and the concern that people of faith and religious groups would somehow be harmed by the recognition of gay marriage.

Why did the campaign have to do this? Because the campaign advisors revealed that they met with dozens of focus groups and realized that the campaign had no chance of winning if it was just about gay marriage. “They [voters] would entertain allowing gay marriage, but not if doing so had significant implications for the rest of society.” So the campaign had to create falsities, such as same-sex couples suing churches for refusing to perform gay marriages, and then, after winning or losing, then seeking to remove their tax-exempt status. Have an F-List Pepperdine law professor say it could happen…

Because the campaign had absolutely no support for this, they stuck this column (I’m a D-List law professor) in the background, hoping no one would read it. One reporter read it and questioned Prop. 8 campaign chair Andrew Pugno on the misuse. Pugno refused comment. Big surprise.

The good news about Judge Walker’s ruling needs to be tempered by the fact that, if this case reaches the Supreme Court, as of today, there are four sure votes against us, which is awful news. Not only does gay marriage hang in the balance, but so does Lawrence v. Texas. When we lost Sandra Day O’Connor from the Court in 2007 and got Samuel A. Alito in her place, we got someone whose writings on gay issues this term reveal that he is a little more than a shill for the Family Research Council, a group which honored Alito for his anti-gay rhetoric when Alito was a lower court judge.

In the meantime, yes, the Ninth Circuit of Appeals will affirm Judge Walker’s ruling in 2011 or 2012. It’s likely that there will be 5 votes in our favor when the matter reaches the Supreme Court in 2013 or later. l