Editorial: Time for a winning campaign

  • by BAR Editorial Board
  • Wednesday February 15, 2023
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On November 5, 2008, over a thousand people turned out for a candlelight vigil on the steps of San Francisco City Hall after the passage of Proposition 8. Photo: Rick Gerharter
On November 5, 2008, over a thousand people turned out for a candlelight vigil on the steps of San Francisco City Hall after the passage of Proposition 8. Photo: Rick Gerharter

Last summer, we wrote an editorial urging Equality California and the LGBTQ Legislative Caucus to think carefully before proceeding with a constitutional amendment to repeal Proposition 8 that would need to go before voters in 2024. Many people may wonder why, with same-sex marriage legal in California since 2013, such a move is necessary. The reason is that while Prop 8 itself was ruled unconstitutional by a federal judge, which was upheld by an appeals court and the U.S. Supreme Court, the language from that 2008 state constitutional amendment that voters initially approved 15 years ago remains on the books.

Known as the "zombie" Prop 8, repealing it has taken on new urgency. As we have explained, when the high court overturned Roe v. Wade last June, Supreme Court Justice Clarence Thomas, in his concurring opinion in Dobbs v. Jackson Women's Health Organization, 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.

On Valentine's Day, EQCA, the statewide LGBTQ rights group, announced that gay lawmakers Assemblymember Evan Low (D-San Jose) and state Senator Scott Wiener (D-San Francisco) introduced a constitutional amendment to repeal Prop 8. If it passes the Legislature, which is likely given Democratic majorities in the Assembly and Senate, voters would be asked in 2024 to remove the anti-same-sex marriage language from the California Constitution. The language of Prop 8 declared "only marriage between a man and a woman" as valid or recognized in California — and that's what needs to be jettisoned from the document.

Wiener told us that a coalition would be formed to run the initiative campaign. EQCA confirmed that, and added it is in the early stages of campaign planning with other LGBTQ, civil rights, and legal groups. Right now, EQCA is focused on getting Assembly Constitutional Amendment 5, as it's known, through the Legislature.

We cannot emphasize enough that planning should proceed quickly so that a campaign can be launched. We wrote before about the massive amount of money needed, and that remains the case. However, EQCA and the other coalition partners should take a page from last year's successful campaign for Proposition 1, which enshrined the right to abortion in the state constitution. It passed with 66.9% of the vote. According to the secretary of state's office, the pro-Prop 1 side had contributions of just over $9.1 million, while opponents raised a paltry $69,681.

We can expect a more robust fundraising effort by our opponents on the Prop 8 repeal. Funds are critical for the all-important TV ads, but it would be better if the campaign doesn't cannibalize other issues critical to the LGBTQ community: housing, homelessness, and trans access to health care, to name just three. Another thing to consider is this: for every dollar raised for the Prop 8 repeal campaign, that's one less dollar to help elect LGBTQ candidates around the state. That's the main mission of EQCA, and we would hate to see that effort diminished in any way because of the ballot measure.

In some ways, same-sex marriage is a moot issue in the state. The electorate has changed a lot since 2008, with more and more people supporting same-sex marriage. Throw in a presidential election year, and that likely will bring out more progressive voters. Though it's important to remember that Prop 8's passage also came in an election year that saw Barack Obama win the presidency. Back then, however, there was considerable opposition from the Mormon and Roman Catholic churches, as well as the red herring about kids being exposed to the topic in schools. However, we agree with Jennifer Pizer, chief legal officer for Lambda Legal Defense and Education Fund, who told us in December that she doesn't see those old scare tactics used during the Prop 8 campaign — particularly around same-sex parents raising children and kids learning about LGBTQ issues in school — being met with the same level of support that they were 15 years ago. In California, there are now state laws mandating teaching about LGBTQ history and other topics in public schools. But the community certainly needs to be prepared for a potential backlash.

Faces of the campaign

Back in 2008, U.S. Senator Dianne Feinstein (D-California) was an important backer of the No on 8 campaign (the side that was for same-sex marriage). This week, Feinstein announced that she will retire at the end of her term next year. It would be a fitting coda to her legacy if she would come out early in support of the constitutional amendment to repeal Prop 8, as would be the case for the candidates running to succeed her. The Senate contest will be a marquee race in the Golden State, and the two candidates who advance out of the March primary should make Prop 8 repeal a central focus of their campaigns heading into the November election — and help raise money for it.

Let's add Governor Gavin Newsom to the list as well. As the former San Francisco mayor who helped launch the fight for marriage equality in 2004, he certainly understands the issue. In a statement Monday, he referenced the "Winter of Love" he ushered in after he ordered city officials to issue marriage licenses to same-sex couples. "Same-sex marriage is the law of the land and Prop 8 has no place in our constitution," he stated. "It's time that our laws affirm marriage equality regardless of who you are or who you love. California stands with the LGBTQ+ community and their right to live freely."

Additionally, however, LGBTQ same-sex couples — of all colors, ages, and abilities — must be the face of the campaign. We've written many times that a glaring mistake of that 2008 No on 8 effort was the decision not to use many actual LGBTQ people in the ads. That turned off everyone. LGBTQ people felt invisible during a ballot campaign about their very lives, and straight allies, while incredibly important, are simply no replacement for us. This new coalition must develop campaign strategies showcasing LGBTQ people who can talk about why it's important that the Prop 8 language be removed from the state constitution — and why voters, whether they be LGBTQ or not, must support us.

The LGBTQ community, frankly, does not have a good track record winning statewide ballot initiatives here. With the exception of the 1978 Briggs initiative (that would have barred gays and lesbians from teaching in public schools), which, by the way, featured a broad coalition of LGBTQ and straight allies, we lost the Knight initiative in 2000 (another anti-same-sex marriage proposition) and Prop 8 in 2008. Now, we will soon be asked to raise money and work for another statewide ballot measure that is perhaps the most important of all. We certainly hope our community's leaders have learned something from those past losses and can put together a winning campaign. If same-sex marriage isn't safe in California, it isn't safe anywhere.

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