Now that the U.S. Supreme Court has overturned Roe v. Wade, which guaranteed the right to abortion, LGBTQ political leaders here in California are ramping up in case marriage equality soon comes before the justices. They have good reason to be concerned. As has been widely reported, Justice Clarence Thomas' concurring opinion in Dobbs v. Jackson Women's Health Organization specifically opens the door for the court to possibly overturn other precedents like same-sex marriage (Obergefell v. Hodges), same-sex sexual relations (Lawrence v. Texas), and the right for couples to use contraception without government restriction (Griswold v. Connecticut). The reason California leaders are so worried is because Proposition 8, the state's same-sex marriage ban passed by voters as a constitutional amendment in 2008, is still technically on the books even though federal courts found it unconstitutional. In 2013, the U.S. Supreme Court let a federal appeals court ruling stand, which ushered in marriage equality in the Golden State, two years before Obergefell did the same thing nationwide. Prop 8 cannot be removed without voter approval. If the U.S. Supreme Court does indeed take up a same-sex marriage case and overturns Obergefell, it's possible Prop 8 could become law again, according to some legal observers.
The San Francisco Chronicle recently reported on the effort of LGBTQ leaders to get rid of the so-called zombie Prop 8 via a state constitutional amendment that voters would decide, possibly in 2024. The article stated that advocates already have draft language drawn up but decided not to bring it before voters this fall.
Before Equality California and members of the state Legislative LGBTQ Caucus get too far in this, we'd like to pause briefly to outline some potential pitfalls. After all, we certainly do not want a repeat of the No on 8 campaign that made us feel like second-class citizens even as we were fighting for our own right to wed. Although it was 14 years ago and much has changed politically in California since voters decided — by a margin of 52.24% to 47.76% — to forbid same-sex marriage here, we're concerned that there are still broad pockets of conservatives who despise marriage equality. They likely will use arguments similar to what the Church of Jesus Christ of Latter-day Saints and the Catholic Church did in 2008: position same-sex marriage as bad for children and same-sex couples as groomers, the new boogeymen in today's political discourse. The volatile issue of children and schools was a key centerpiece of the Yes on 8's successful campaign and remains a hot-button topic today, especially with regard to trans kids and their families, which may or may not include same-sex parents but who are still a part of the LGBTQ community.
Let's not forget that Prop 8 even passed in Los Angeles County, if you can imagine that, as well as Riverside County — home to LGBTQ resort and retirement mecca Palm Springs — and the conservative counties throughout the state you would expect. This was despite polls showing Prop 8 would lose. It was a disaster. And it took place during a presidential election year, when younger, progressive voters are more likely to turn out in larger numbers. We all better hope that's the case in 2024, also a presidential election year. The Chronicle looked at voter data in the last three elections in San Francisco — the September 2021 recall of Governor Gavin Newsom, the February recall of the school board (and special election for Assembly District 17), and the June 7 primary. Among the findings, the article showed that only in the Newsom recall did young people aged 18-29 turn out at more than 50%. They made up just 19% of voters in February and slightly better, at 28%, in June. And that was in true-blue San Francisco.
Expensive campaign, messaging
Then there's the money. According to an NBC News report in 2009, the final tallies showed that, on the LGBTQ side, the opponents of Prop 8 raised $43.3 million in 2008 and had a little more than $730,000 left on hand at year's end. The measure's sponsors raised $39.9 million and had $983,000 left over. (). So adjusted for inflation, it's safe to say that the pro-marriage equality side would need to raise a lot more than $43.3 million for 2024, probably closer to between $75 and $100 million.
We cannot emphasize enough that any campaign to repeal Prop 8 needs to center LGBTQ people and same-sex couples — and that means all kinds of queers and couples, not just white ones. That was a major misstep of the 2008 No on 8 campaign that simply must not be repeated. The need for allies to speak out in support is great — and necessary — but we need queer couples and families to be front and center in the TV ad blitz, which would be essential to victory. You can't win a statewide initiative campaign in California without lots of TV ads, period. EQCA and whoever runs the campaign should take a cue from the Native American tribal governments that this year began running TV ads for their November ballot measure before voters went to the polls in June and before it even had a number assigned to it. That's how far in advance the TV ad buys need to begin. So if EQCA and state politicos are eyeing November 2024, ads should start running a year in advance. That timeline will be needed to connect with voters and make the case for removing Prop 8 from the state constitution. Most people, knowing that same-sex marriage is already legal, probably don't even understand the importance of removing Prop 8 from the books and why they should vote for that. It will need to be explained to them.
The draft ballot language presumably is straightforward, but it should be that a yes vote is for marriage equality, thus removing Prop 8. That was one of the problems of Prop 8, the Yes on 8 side had the easier message to sell — prevent marriage equality — and that's what it successfully did. The LGBTQ side had the difficult task of convincing voters that a No vote was actually a vote FOR marriage equality.
There's new leadership at EQCA and in the state LGBTQ caucus — and many other organizations — since those awful days of 2008 when state voters took away our right to marry. (Same-sex marriage had been legal between June 2008, when a state Supreme Court decision took effect, and that November after Prop 8's passage.) Let's hope they learn from the mistakes of 14 years ago. If there's a ballot measure to repeal Prop 8, it cannot be defeated.
Help keep the Bay Area Reporter going in these tough times. To support local, independent, LGBTQ journalism, consider becoming a BAR member.