Repeal of Prop 8 same-sex marriage ban language heads to California ballot in 2024

  • by Matthew S. Bajko, Assistant Editor
  • Thursday July 13, 2023
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Clergy members and supporters, totaling more than 200 people, marched to Civic Center on March 26, 2009, following a negative decision on Proposition 8 by the California Supreme Court. Photo: Rick Gerharter
Clergy members and supporters, totaling more than 200 people, marched to Civic Center on March 26, 2009, following a negative decision on Proposition 8 by the California Supreme Court. Photo: Rick Gerharter

In 2024, 16 years after a slim majority of Golden State residents adopted a ballot measure banning same-sex marriage, California voters will have a chance to rescind that homophobic decision next November. The campaign to once-and-for-all undue what was known as Proposition 8 could also help dozens of LGBTQ and progressive candidates running throughout the state next fall.

After the state Assembly voted during Pride Month to place the Prop 8 repeal measure Assembly Constitutional Amendment 5 before voters, state senators followed suit Thursday morning. Legislators in the chamber voted 31-0 with bipartisan support in favor of ACA 5.

"Today, with bipartisan support, we are one step closer to ensuring marriage equality as a fundamental right in California. ACA 5 will give voters the opportunity to remove a black stain from the California Constitution," stated gay Assemblymember Evan Low (D-Sunnyvale), who was the lead author of the measure. "California is ready for love, and these protections will protect against any future attempts to restrict marriage rights for same-sex and interracial couples."

Co-author gay state Senator Scott Wiener (D-San Francisco) expressed optimism in seeing voters adopt ACA 5.

"Next fall, Californians will reject the assault on LGBTQ rights that bigoted, ideological Justices have launched from the Supreme Court," predicted Wiener. "The bipartisan support for this amendment shows once again that inclusion remains a core value across ideological lines in our state. I look forward to working with this incredible coalition to advance this critical protection."

Two Democrats who had signed on as co-authors of ACA 5 didn't cast votes last week, Senators Bill Dodd of Napa and Anthony J. Portantino of Burbank, while the lone Republican senator to vote for it was Scott Wilk of Santa Clarita. The seven other members of the Senate's GOP caucus didn't cast votes on ACA 5.

The decision to skip the vote by Senator Rosilicie Ochoa Bogh (R-Yucaipa), who currently holds the 23rd Senate District seat, led to an admonishment from transgender Palm Springs City Councilmember Lisa Middleton. The Democrat is running next year against Ochoa Bogh for the newly drawn 19th Senate District seat that includes the LGBTQ tourist and retirement mecca in the Coachella Valley.

She issued a statement last Friday saying she was "deeply disappointed" her opponent abstained from the vote. Coincidentally, the same day that ACA 5 passed out of the Senate, Ochoa Bogh officially kicked off her 2024 campaign bid.

"Our marriages matter. My wife and I celebrate the love and union of other couples. Senator Ochoa Bogh, when given an opportunity to stand up for the marriages of thousands of her constituents, chose silence. I will not be silent," stated Middleton.

If elected, Middleton would become the first trans member of the Legislature's upper chamber; two trans candidates are also seeking to be the first elected to the Assembly next year. Having the Prop 8 repeal measure on the 2024 fall ballot could help bolster her chances in the Senate race by drawing more LGBTQ and progressive voters in Riverside and San Bernardino counties to the ballot box.

"An overwhelming majority of Californians across the political spectrum support this policy. Senator Ochoa Bogh's failure to support basic civil rights for the LGBTQ+ community and for interracial couples is disqualifying," stated Middleton.

ACA 5 does not require Governor Gavin Newsom's signature to be placed on the November ballot next year, though the governor is likely to support it and play a key role in the campaign to pass the repeal measure. After all, Prop 8 stemmed from his action back in February of 2004, when he was mayor of San Francisco, to order city officials to ignore state statutes and marry same-sex couples.

What was dubbed the "Winter of Love" spawned a decade-long legal battle over marriage equality in California. Although the California Supreme Court annulled the marriages performed in 2004, the justices ruled in the spring of 2008 that same-sex couples had a right to wed.

Many rushed to exchange wedding vows before the November election that fall because of the ballot measure known as Prop 8. It aimed to define marriage as being between a man and a woman in the state's constitution, thus halting the same-sex marriages. Voters ended up narrowly adopting Prop 8 in November 2008, leading to several legal challenges being filed with the state courts over its constitutionality.

Yet the state supreme court issued a ruling on May 26, 2009, upholding Prop 8 with a 6-1 decision. It would take another four years for the federal courts to overturn that ruling in the case of Perry v. Schwarzenegger, which had first been heard by a district court in San Francisco.

In June 2013 the U.S. Supreme Court let stand rulings by lower federal courts that had found Prop 8 to be unconstitutional. With same-sex couples once again allowed to wed in California, the ballot measure pushed by anti-LGBTQ groups and conservative leaders largely receded from many peoples' minds.

That is until last summer, when the conservative majority on the U.S. Supreme Court rescinded a federal right to abortion. The ruling alarmed LGBTQ advocates in California, who feared seeing the nation's top court also reexamine its 2015 decision in Obergefell v. Hodges that established a federal right to marriage for same-sex couples.

Should that ruling be reversed, it could revive Prop 8's "zombie language" that remains embedded in the California Constitution. With that fear in mind, the state's LGBTQ legislators and their allies decided to wage one more ballot box fight over the issue of marriage equality.

It led to the introduction this legislative session of ACA 5 in order to safeguard marriage rights for same-sex couples in California from any future legal attacks at the national level. Already pledging their support to help pass ACA 5 next year are spouses Ruth Borenstein and Karen Strauss.

Unable to marry in the summer of 2008 prior to Prop 8's passage for family reasons, the Noe Valley couple agreed to take part in one of the lawsuits filed with state courts seeking to have it be deemed unconstitutional. They became the lead plaintiffs in Strauss v. Horton and, while they lost that legal fight, the women were able to finally wed in the summer of 2013.

"I never really thought about the fact that Prop 8 was still there. It didn't get repealed somehow, not withstanding all the good case law that said that it was invalid," Borenstein recently told the Noe Valley Voice monthly newspaper. "Once I understood this was just like those terrible abortion bans that would kick back into life, I knew we had to do something."

Borenstein is optimistic of seeing ACA 5 be passed. It requires majority approval from California voters to amend the constitution and excise Prop 8's language from the document.

In the coming months, a broad coalition of civil rights organizations and labor groups, including Equality California, will launch a statewide campaign to secure passage of ACA 5.

"Today is a historic day for our community, for California, and for the cause of justice and equality everywhere," stated Equality California Executive Director Tony Hoang. "California should always protect fundamental civil rights for all people and ACA 5 is a critical step toward fulfilling that commitment. This wouldn't be possible without the broad bipartisan support and commitment to love and fairness of our partners in the Legislature."

Updated, 7/17/23: This article has been updated with comments from state Senate candidate Lisa Middleton and other information.

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