The website of the Freedom to Marry campaign to remove anti-same-sex marriage language from the state constitution prominently went live featuring a heterosexual-appearing couple as its main image. It brought to mind the unsuccessful 2008 effort to block the same-sex marriage ban known as Prop 8 from being passed that didn't showcase gay or lesbian couples in its ads.
On the November 5 ballot California voters are being asked to vote yes on Proposition 3. An Assembly Constitutional Amendment, it would excise from the state's governing document the "zombie" anti-same-sex marriage language that Proposition 8 embedded in it. Sixteen years after voters passed Prop 8, the state Legislature by a bipartisan vote last year placed Prop 3 on this year's fall ballot.
Reached for comment August 27, Yes on 3 spokesperson Nathan Click had defended the usage of the straight-appearing couple as the lead image people see when landing at the website. But Click also said it would be a good idea to switch out the photo periodically in the future when asked about doing so by the Bay Area Reporter.
"The measure does two things — it safeguards both same-sex marriage and interracial marriages in the state's constitution, and the photos on the website represent that," Click said, adding that the man and woman shown are an interracial couple.
About an hour after Click spoke Tuesday with the B.A.R., the image of the opposite-sex couple was taken down. In its place was an empty blue field. It was later replaced with a slideshow of images showing same-sex couples in addition to the opposite-sex couple.
While the text on the website says Prop 3 "will protect the fundamental right to marry, regardless of your gender or race," the Prop 8 language had nothing to do with banning interracial marriages. As the Yes on Prop 3 website notes, "California's Constitution retains language that 'Only marriage between a man and a woman is valid or recognized in California.'"
Prop 8 was ultimately ruled unconstitutional in a 2013 United States Supreme Court decision. However, concerns the Supreme Court might overturn its 2015 ruling in Obergefell v. Hodges — which legalized same-sex marriage nationwide — have renewed the need for removing the Prop 8 language from the state constitution to protect same-sex marriage in California, as the B.A.R. previously reported.
That concern came from Justice Clarence Thomas' words in a concurrence to the 2022 ruling in Dobbs v. Jackson Women's Health Organization, which overturned the constitutional right to abortion in Roe v. Wade.
Thomas, appointed by President George H.W. Bush to the high court, wrote that it "should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell." Griswold v. Connecticut was a 1965 ruling that people have a constitutional right to access contraceptives; Lawrence v. Texas was a 2003 ruling that overturned laws prohibiting sexual relations between people of the same sex, as well some laws against oral or rectal intercourse between members of the opposite sex.
In response to Thomas' warnings, President Joe Biden and congressional Democrats shepherded the Respect for Marriage Act into law later that year with bipartisan support.
The new law repealed the discriminatory so-called Defense of Marriage Act 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). The law requires the federal government and all states and territories to recognize the validity of same-sex and interracial civil marriages performed anywhere in the U.S.
Interracial marriage has been legal nationwide since a 1967 Supreme Court decision, Loving v. Virginia. According to Gallup, 94% of Americans approved of interracial marriage in 2021. Thomas, who is in an interracial marriage, did not mention Loving as a precedent to overturn in his concurrence. Nor did Prop 8 ban interracial marriages.
Yet Click told the B.A.R. that Prop 3 includes interracial marriage as well as same-sex marriage; hence the picture initially selected to be the most prominent on the yes campaign website. While the ballot measure language doesn't specifically refer to interracial marriage — it says "the right to marry is a fundamental right" — the official title and summary prepared by the office of Attorney General Rob Bonta says Prop 3 "amends California Constitution to recognize fundamental right to marry, regardless of sex or race."
The B.A.R. also noted to Click that the secondary photo used on the campaign website of a same-sex female couple was blurry in contrast to the lead photo of the straight-appearing couple.
"That wasn't our intention in designing the site," he said. "Obviously, this is incredibly important to Californians and why we've received a ton of support for the measure."
Click referred the B.A.R. to the campaign's Instagram page, which features photos of same-sex couples.
The Instagram page represents "a wide diverse number of voices and experiences," said Click, who used to work for Governor Gavin Newsom's office. When the B.A.R. asked if the lead photo on the website should be swapped, from time-to-time, Click said, "I think that's a good idea."
Newsom came to San Francisco in early June to kick off the Northern California campaign for Prop 3. At the event, held at gay-owned cafe and event space Manny's in the Mission neighborhood, Newsom pledged to do "whatever I can do" to ensure that state voters pass Proposition 3.
The B.A.R. also let Click know that the website link to a news release to the launch of the Yes on Prop 3 campaign led to a 404 not found error message. The link was later fixed.
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