After months of discussions, two gay California lawmakers on Valentine's Day introduced a constitutional amendment to repeal Proposition 8, the state's same-sex marriage ban that remains on the books despite being ruled unconstitutional years ago.
Equality California, the statewide LGBTQ rights group, announced February 14 that Assemblymember Evan Low (D-San Jose) and state Senator Scott Wiener (D-San Francisco) have introduced Assembly Constitutional Amendment 5. It is intended to protect same-sex marriage with plans to remove Prop 8's discriminatory language from the state's constitution.
If approved by the Legislature, the amendment would go before voters in November 2024. It is unclear who would run the campaign to repeal the Prop 8 language from the state constitution, an effort that is expected to cost tens of millions of dollars.
In a text message Tuesday morning, Wiener said that a coalition will be behind the campaign to approve ACA 5, "but the campaign team is not yet set up."
EQCA spokesperson Jorge Reyes Salinas told the Bay Area Reporter that the organization will be part of the coalition.
Equality California will be a part of the coalition of LGBTQ+ civil rights and legal organizations leading the effort," he wrote in an email. "We are in the early stages of campaign planning, and our primary focus at the moment is getting the amendment through the Legislature."
The amendment process is similar to last year's constitutional amendment enshrining the right to abortion in the state constitution, which passed with 66.9% of the vote, according to the secretary of state's office. Governor Gavin Newsom does not need to sign the legislation authorizing the amendment.
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. Prop 8 had declared that "only marriage between a man and a woman" as valid or recognized in California.
Despite the federal win for same-sex marriage, the Prop 8 language remains in the California Constitution.
"Californians believe in love, simply put. Repealing Proposition 8 is the right thing to do to ensure that marriage equality is protected now and for future generations," Low stated in a news release. "California leads the way in LGBTQ+ protections and cutting-edge pro-equality legislation and our constitution should reflect those values."
"Repealing Prop 8 is an essential step in protecting the freedom to marry for millions of LGBTQ Californians," added Wiener. "This scar on our constitution is unconscionable, and it needs to be removed, especially with extremist Supreme Court Justices threatening to overturn marriage equality. It's time to send this issue to California voters to right this wrong."
Wiener has long advocated for repealing what is known as "zombie" Prop 8. At a December news conference with U.S. Senator Alex Padilla (D-California), Wiener said, "We need to get Prop 8 out of our constitution in California."
Although marriage equality in the Golden State is currently protected by gay then-federal Judge Vaughn Walker's 2010 ruling striking down Prop 8 and the 2015 Supreme Court decision in Obergefell, it has become increasingly clear that the Supreme Court cannot be trusted to protect LGBTQ couples' civil rights and liberties, EQCA stated. If the court was willing to overturn five decades of precedent guaranteeing the right to abortion (as they did with the Dobbs v. Jackson Women's Health Organization decision last year), EQCA noted, "it cannot be assumed it will uphold less than a decade of precedence protecting marriage equality, particularly in light of statements made by Justices Clarence Thomas and Samuel Alito referring to Obergefell as a 'problem' and 'threat.'"
Last June, in overturning Roe v. Wade, 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.
EQCA noted that the recent passage of the Respect for Marriage Act was an important step forward — it requires the federal government to recognize same-sex and interracial marriages and affirms that states must recognize valid marriage licenses from other states — but it does not require states to issue marriage licenses to same-sex couples.
President Joe Biden signed the bipartisan Respect for Marriage Act December 13.
"Today, on Valentine's Day, we are reminded that marriage is about love, commitment, and family. Same-sex families should have certainty and the freedom to live without fear that their marriage could be taken from them," stated EQCA Executive Director Tony Hoang, a gay man. "The overwhelming majority of Californians — 71%, an all-time high which includes people from across the political spectrum — support the freedom to marry for same-sex couples. Equality California is committed to continue addressing the pressing issues facing the LGBTQ+ community, including the alarming increase of anti-LGBTQ+ attacks against the trans community while advancing this constitutional amendment."
Leaders of several LGBTQ and allied organizations expressed support for the new constitutional amendment.
"While LGBTQ+ Californians enjoy some of the strongest legal protections in the country, vestiges of discrimination still linger in our Constitution and our culture. The repeal of Prop 8 is one critical step toward ensuring lived equality for all," stated Carlos Marquez III, executive director of American Civil Liberties Union California Action. "We look forward to working with our coalition partners, Assemblymember Low, members of the LGBTQ Legislative Caucus, and legislative leadership on this repeal effort as well as the other work ahead, which must include making additional investments particularly in our trans communities, who continue to experience violence, discrimination, and injustice."
The national Human Rights Campaign also weighed in.
"The right to marry is fundamental. All couples deserve to know that their marriages are secure and recognized in the eyes of the law," stated HRC President Kelley Robinson, a queer woman. "We are proud to support this effort to repeal Proposition 8, and we will do whatever it takes to ensure that marriage equality remains the law of the land in this country. We also know that removing this hateful language from the state's constitution will not end the ongoing deadly violence, legislative assaults and constant threats facing LGBTQ+ people across the country, especially our transgender community, and we look forward to continuing to fight for full equality for everyone in our community, without exception."
Imani Rupert-Gordon, a queer woman who's executive director of the National Center for Lesbian Rights, in December declined to talk with the B.A.R. about what was at the time a potential amendment. She is now on board.
"We are grateful to Assemblymember Low and Senator Wiener for taking this critical first step to remove this shameful endorsement of inequality from California's Constitution," Rupert-Gordon stated. "Especially when LGBTQ+ people are under attack in so many states across the country, it is more essential than ever that California lead the way in affirming the equal dignity of every person, regardless of their race, religion, ethnicity, ability, gender, sexual orientation or gender identity. Repealing Prop 8 is an important part of a much larger battle."
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