With the start of Pride Month has come a concerted effort to see that the homophobic legacy of the 2008 same-sex marriage ban Proposition 8 be fully erased from the California Constitution. From state lawmakers to local elected officials, there has been a groundswell of support in recent days behind repealing Prop 8's "zombie language" from state statutes.
Narrowly adopted by voters in 2008, Prop 8 defined marriage as being between a man and a woman under California law. It was later found to be unconstitutional by federal courts, paving the way for same-sex marriages to resume in the Golden State in June 2013. Two years later the U.S. Supreme Court established marriage equality as a federal right with its Obergefell v. Hodges decision released during Pride Month of 2015.
Despite those legal rulings there is concern among LGBTQ advocates that the current conservative majority on the court could rescind Obergefell akin to its ending a federal right to abortion last June. Under such a scenario, the fear is that Prop 8's language would once again become law and bar same-sex couples from getting married in California.
To avoid that from happening, gay Assemblymember Evan Low (D-Cupertino) earlier this year introduced Assembly Constitutional Amendment 5, which would excise Prop 8's language from the state's governing document. On June 5, Low gathered with several of his legislative colleagues on the West Steps of the California State Capitol to announce ACA 5's actual language that would appear on the November 2024 general election ballot.
Last week, Lieutenant Governor Eleni Kounalakis asked supporters of her 2026 gubernatorial campaign to sign up as citizen sponsors of ACA 5 on a website she launched June 7. Kounalakis is a co-sponsor of it herself.
"In a time where the extremist Supreme Court has the power to disband the rights and liberties that embody our country's foundation — like they've done with abortion and threatened of gay marriage — it is of the utmost importance that our state leads the cause in protecting marriage equality," wrote Kounalakis. "Enshrining the right to marriage equality is long overdue. So let's stand up to defend the right to love & uphold equality by overturning Prop 8."
Despite calls from a number of Baptist pastors in the state to reject ACA 5, the Assembly Judiciary Committee voted 9-1 in favor of it on June 13. At the hearing Tuesday morning several members of the panel came on board as co-authors of it, including Assemblymember Ash Kalra (D-San Jose). Over the weekend he officiated the wedding of two women he is "dear friends" with, saying everyone should have the same "privilege" to marry the person they love.
"Our state should absolutely stand with love, not with bigotry, not with those that seek to divide, but those who seek to actually bring a loving community together," said Kalra. "I am grateful that the voters will have a chance and opportunity to make it very clear where California stands, that we stand on the side of love."
ACA 5 requires a two-thirds vote by the Legislature to be adopted, with the Assembly expected to pass it by the end of the month. The state Senate is expected to pass it later this summer, although the chamber has until June 30, 2024, to vote for it in order to get it onto the November ballot that fall. ACA 5 doesn't need to go before Governor Gavin Newsom to sign.
Francisco Castillo, who is raising two children with his husband, told the Assembly committee this week that Prop 8 is "a deep wound inflicted upon our hearts" that must be repealed.
"Despite the strides we have made toward equality, the shackles of discrimination still exist in our constitution," said Castillo, a board member with statewide LGBTQ advocacy organization Equality California.
Tuesday evening the San Francisco Board of Supervisors unanimously adopted 11-0 without comment a resolution in support of ACA 5 and seeing the Prop 8 repeal measure go before voters next November. The coming votes on ACA 5 in the Statehouse prompted District 11 Supervisor Ahsha Safaí to bring forward a resolution.
As the Bay Area Reporter's online Political Notes column first reported June 8, Safaí secured the blessing of his three gay colleagues on the board — Supervisors Joel Engardio of District 4, Matt Dorsey of District 6, and Rafael Mandelman of District 8 — to introduce the resolution. All three signed on as co-sponsors.
"We felt, given the fact this is still embedded in the California Constitution, it is the right time to repeal it," Safaí told the B.A.R. in an exclusive interview June 7, a day after introducing the resolution at the board.
As for taking a lead role in authoring it, Safaí said he felt it was an appropriate action, so long as his gay colleagues supported his doing it, because it will take a coalition of voters to support repealing Prop 8's language next November.
"It is the LGBTQ+ community and allies who will have to do this together," said Safaí, who will also appear on the same ballot as a San Francisco mayoral candidate.
His officiating the marriage in April of Thomas Luchini, 69, and Adrian Catuar, 71, had sparked the idea for the resolution, said Safaí. He has been friends with the couple since Luchini volunteered on Safaí's first losing bid for supervisor in 2008 on the same ballot that saw Prop 8 pass. (Safaí would go on to win election to the District 11 seat in 2016.)
Luchini told the B.A.R. he was happy to learn the couple's marriage had sparked the resolution from Safaí, calling it "a great idea." But in a sign of how LGBTQ advocates will need to educate voters that Prop 8 still lingers, Luchini also said he thought the court rulings had completely invalidated it.
"I was surprised; I thought Prop 8 had been repealed. But I guess the language is still in the constitution," said Luchini, who first met Catuar in April 1978 at the now-closed Castro gay bar Alfie's.
It is believed the San Francisco board is the first county municipal body to publicly come out in support of ACA 5. The Cupertino City Council in April had sent state lawmakers a letter of support for seeing ACA 5 move forward; the Oakland City Council last July became the first known elected body in the state to call for voters to repeal Prop 8.
"Marriage equality is a fundamental right, and I'm thankful to have the support of the San Francisco Board of Supervisors," Low told the B.A.R. "This is an opportunity for our state to remove a black mark from the California constitution and protect our community members, especially considering the recent attacks on the LGBTQ+ community."
As for having confidence that voters will do away with Prop 8 once and for all next year, Safaí pointed out that since its initial passage, public support for marriage equality has only grown and President Joe Biden last December signed bipartisan legislation, the Respect for Marriage Act, to repeal the discriminatory Defense of Marriage Act that was passed in 1996.
"It is the law of the land, and I think we are just reaffirming that and taking it out of the state constitution. I feel confident we will get it done," said Safaí. "I will be proud to campaign on that next year."
No on 8 veteran offers advice
Kate Kendell, a lesbian and former executive director of the San Francisco-based National Center for Lesbian Rights, told the B.A.R. that she thinks the constitutional amendment should go before voters in 2024. Kendell was one of the leaders on the unsuccessful No on 8 campaign in 2008 when Prop 8 was narrowly approved by Golden State voters.
"I think we should remove the zombie language. As we see in real time it could come back to haunt us," she said in a phone interview, referring to potential action by the U.S. Supreme Court. After last June's ruling overturning the right to abortion in Roe v. Wade, Justice Clarence Thomas indicated in a concurring opinion that other court decisions, including same-sex marriage, should be reconsidered.
Kendell, now chief of staff at the California Endowment, ruled out any involvement in a 2024 campaign.
But she did have some advice for whoever does run the pro-same-sex marriage side of a 2024 campaign. Kendell said that one of the issues with a 2024 vote is motivating people, especially LGBTQ residents, to the polls. Many people likely won't see what the urgency is since same-sex marriage has been legal in California since 2013.
The campaign needs to "try to make the case of why it's necessary," she said. "Yes, we can marry," but the language in the state constitution "could be activated at any moment with this Supreme Court and Thomas."
"We need to shore up our defenses," Kendell added, "and that includes removing the language."
The single biggest thing a campaign would need to do is "give people goddamn lawn signs," she said. By that, she also meant really working with grassroots LGBTQ groups and allies. "Don't rely solely on an air campaign," she added.
Television ads, or the air campaign, likely will be a big part of the 2024 effort, costing millions of dollars. But one of the things the No on 8 campaign didn't do as well was work to motivate the grassroots. The No on 8 signs didn't appear until late in the effort, as opposed to the Yes on 8 anti-same-sex marriage signs, which sprouted up all over, including in the Bay Area.
"If you can't ignite the base to get engaged — you see what happened," she said.
Kendell thinks Prop 8 would have won 15 years ago even if No on 8 ran a perfect campaign.
Kendell also said that queer people need to be centered in the 2024 ad campaign. That was another problem back in 2008, when mostly straight allies and politicians were featured in the ads.
"Absolutely," she said. "You can't get away with that now."
Cynthia Laird contributed reporting.
UPDATED 6/14/2023 the vote count for ACA 5.
Help keep the Bay Area Reporter going in these tough times. To support local, independent, LGBTQ journalism, consider becoming a BAR member.