Nearly lost among the celebrations late last year when the U.S. Senate passed the Respect for Marriage Act and President Joe Biden signed it was the fact that California still has the same-sex marriage ban Proposition 8 on the books — technically speaking.
Prop 8, passed by voters in 2008 by a margin of 52.24% to 47.76%, was later ruled unconstitutional by a federal court, which an appeals court upheld. The U.S. Supreme Court in 2013 decided that the ruling against Prop 8 could go into effect, which resulted in same-sex marriage becoming legal in the Golden State two years before the high court's Obergefell v. Hodges decision did the same thing nationwide.
But Prop 8 is still part of the California Constitution, as it was a constitutional amendment that voters decided on. Former Governor Jerry Brown signed a law in 2014 repealing the state's law defining marriage as being between a man and a woman, but that didn't remove Prop 8 from the state's constitution.
Now, as a result of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization last June that overturned the right to abortion in Roe v. Wade, some LGBTQ leaders are sounding the alarm that a ballot measure is needed — possibly as early as 2024 — to remove Prop 8 from the state constitution once and for all.
Supreme Court Justice Clarence Thomas, in his concurring opinion in Dobbs, suggested that other precedents, including on same-sex marriage, contraception, and state sodomy laws, are also ripe for reconsideration. With the 6-3 conservative supermajority now on the high court, LGBTQ activists, legal experts, and others are concerned marriage equality could be next.
The "zombie" Prop 8, as it's referred to, is a problem, some people told the Bay Area Reporter in recent interviews.
"Prop 8 repeal, we've been talking about it for a long time," said Jennifer Pizer, a lesbian who is the chief legal officer for Lambda Legal Defense and Education Fund. Pizer was in San Francisco on December 2 to attend a news conference by Senator Alex Padilla (D-California). He was in the city to tout the Senate's bipartisan approval of the Respect for Marriage Act. That law, signed by Biden December 8, repealed what was left of the federal Defense of Marriage Act.
Specifically, the Respect for Marriage Act repeals the discriminatory DOMA that was passed in 1996 but had key provisions struck down by the U.S. Supreme Court in 2013 (Section 3, U.S. v. Windsor) and 2015 (Section 2, Obergefell v. Hodges). Not only does it require federal recognition of same-sex and interracial marriages nationwide but also mandates states must recognize such unions performed in other states.
Pizer said the prospect of a statewide ballot initiative in California is daunting because it would be "so expensive."
"At the same time, in California people must be able to marry," she added.
A ballot initiative to remove Prop 8 likely would cost tens of millions of dollars. The campaigns for and against Prop 8 15 years ago raised a combined total of more than $83 million, NBC News reported in 2009. And the cost of statewide ballot measures has only increased since Prop 8. Last year's dueling Indian gaming measures, for example, raised a combined $600 million and both ballot initiatives — Props 26 and 27 — lost. Much of the campaign money for statewide initiatives is spent on TV advertising.
Pizer said people shouldn't assume the Supreme Court will overrule Obergefell. "But if it does, it's not tenable to have Prop 8 go back into effect," she said.
Gay state Senator Scott Wiener (D-San Francisco) was unequivocal in his comments made during Padilla's news conference. "We need to get Prop 8 out of our constitution in California," he said. He made those comments after praising the Respect for Marriage Act, adding that some Republicans in Congress voted for it and noting, "there is more work to do."
Pizer said the old scare tactics used during the Prop 8 campaign — particularly around same-sex parents raising children and kids learning about LGBTQ issues in school — and by other states that passed same-sex marriage bans in the 2000s likely wouldn't be met with the same level of support that they were during the Prop 8 fight. In California, at least, there are now state laws mandating teaching about LGBTQ history and other topics in public schools.
"It's appalling nonsense, and I don't think it works anymore," she said.
She said that she believes most people just want the country to move forward but said that transgender and nonbinary people "are under sustained attack now." She was referring to the many anti-trans bills that have passed in other states over the last couple of years. According to the Human Rights Campaign, 344 anti-LGBTQ bills were introduced across 23 states in 2022.
Pizer also said that discussions about whether to attempt to get Prop 8 out of the state constitution have been ongoing for some time.
"Questions about Prop 8 have been discussed since the results came out in 2008 and whether it's important to get rid of it," she said.
Just who would run a campaign to remove Prop 8 from the state constitution is unclear. In 2008, staff from statewide LGBTQ rights organization Equality California took a leading role in the official No on 8 campaign, with help from leadership at the National Center for Lesbian Rights.
Tony Hoang, a gay man who is the executive director of EQCA, told the B.A.R. at the Padilla news conference that the group has been talking about it with others.
"We're in active discussions and will assess next steps," he said, adding that EQCA has had "preliminary conversations" among its board and "throughout the organization."
An EQCA spokesperson stated in a January 17 email that the organization had no new updates.
Imani Rupert-Gordon, a queer woman who is the current executive director of NCLR, demurred when asked about the matter at the Padilla presser last month. She has not responded to follow up requests for comment.
Other issues are important
Other LGBTQ community leaders voiced their opinions. Maceo Persson, a trans man who's co-chair of the San Francisco LGBT Community Center's board of directors, said there is more of a need to pass the federal Equality Act in Congress. Persson made the comments before the Republicans took control of the House of Representatives January 3, which means it's unlikely the act will be reintroduced in that chamber.
The Equality Act, which passed the House on a bipartisan vote in 2021, would add sexual orientation and gender identity to the Civil Rights Act of 1964. It never did get a vote in the 50-50 Senate before the end of 2022, meaning it would need to be reintroduced in that body as well.
The Democrats have a majority in the new Senate, with 48 members who are Democrats, 48 who are Republicans and three independents (including bisexual Arizona Senator Kyrsten Sinema) who caucus with the Democrats.
Persson added that California is home to great community organizers, but that "bread and butter" issues like poverty affect many LGBTQ people. And, he pointed out that the U.S. Supreme Court's 2020 ruling in Bostock v. Clayton County that a federal law barring discrimination on the basis of "sex" also prohibits discrimination based on sexual orientation and transgender status "doesn't protect in public accommodations."
In fact, the high court heard oral arguments in early December about a case that could affect just that. The case, 303 Creative LLC v. Elenis, challenges Colorado's public accommodations law by seeking to allow web designer Lorie Smith to refuse to create wedding sites for same-sex couples. With the court's 6-3 conservative supermajority, most observers said the session did not bode well for LGBTQ rights. A decision is expected by June.
Stephen Torres, a queer man who's on the board of the Castro LGBTQ Cultural District, also said that LGBTQ rights need to be protected in all areas of law. That said, he noted that the effort to remove Prop 8 from the state constitution "is important," especially given Thomas' comments in his concurring opinion in Dobbs.
"We have to hold leaders accountable at all levels," Torres said.
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