LGBTQ leaders statewide launched their Freedom to Marry campaign during a virtual news conference Wednesday, beginning their pitch to voters that the California constitution's technical ban on same-sex marriage has got to go.
Voters will decide on Assembly Constitutional Amendment 5 in November. It would remove the "zombie" same-sex marriage ban language that was added to the state's governing document by the passage 16 years ago of Proposition 8. The homophobic ballot measure was declared unconstitutional following a 2010 federal trial, and the U.S. Supreme Court upheld the decision in 2013, with same-sex marriages resuming in the Golden State that June.
State Senator Susan Talamantes Eggman (D-Stockton), a lesbian who is chair of the Legislative LGBTQ Caucus, said this is Californians' chance to "get it right."
The state Legislature voted last year to place ACA 5 on the November 2024 ballot. Because Prop 8 is a constitutional amendment, any changes to it, including removal, need to be approved by voters. Recent polling by the University of Southern California shows that 73% of voters approve of marriage equality, Politico reported.
After a 2008 California Supreme Court ruling legalized same-sex marriage in the state, voters banned the nuptials by amending the state constitution via Prop 8 that November. That was challenged in court during a federal trial in 2010 that declared Prop 8 unconstitutional under the federal constitution. (Then-federal judge Vaughn Walker presided over that trial and publicly came out as gay afterward.)
After the 9th U.S. Circuit Court of Appeals upheld Walker's decision, the U.S. Supreme Court in 2013 allowed his ruling that vacated Prop 8 to go into effect. It determined those defending the proposition lacked standing to appeal. (Under then-state attorney general Kamala Harris, the state of California would not defend Prop 8 in court. Harris is now vice president.)
Two years later, in 2015, the U.S. Supreme Court struck down the discriminatory laws of the states that had not, on their own, legalized same-sex marriage. That case was Obergefell v. Hodges.
The issue of the Prop 8 language was raised in 2022 due to the U.S. Supreme Court's decision overturning Roe v. Wade and the right to abortion. In a concurring opinion in the case, Dobbs v. Jackson Women's Health Organization, Justice Clarence Thomas suggested precedent on issues ranging from contraception to sodomy laws to same-sex marriage could be changed.
"In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold [contraception], Lawrence [sexual relations between same-sex couples], and Obergefell [same-sex marriage]," Thomas wrote. "Because any substantive due process decision is 'demonstrably erroneous,' we have a duty to 'correct the error' established in those precedents."
This alarmed LGBTQ rights advocates.
During Wednesday's virtual news conference statewide LGBTQ rights group Equality California was joined by other organizations and LGBTQ leaders to formally launch what they're calling the Freedom to Marry campaign.
"The California Constitution still says same-sex couples cannot be allowed to marry," said Tony Hoang, a gay man who is EQCA's executive director. "Let's show the rest of the country Californians stand for freedom, love, and equality."
Jackie Goldberg, a lesbian former assembly member from Los Angeles who is now president of her city's school district board, mentioned getting married in 2004 during San Francisco's "Winter of Love" — a monthlong period when same-sex couples could wed in the city. The marriages were later thrown out by the state Supreme Court, before it overturned the state's marriage laws.
"I'm one-half of a couple that got married during the Winter of Love," Goldberg remembered. "I was in the state Assembly at the time and someone said, 'Come on down to San Francisco.' [Governor Gavin] Newsom was mayor and we decided to do that."
Goldberg highlighted the importance of ACA 5, which does not yet have a proposition number for the fall ballot, given Thomas' remarks in 2022.
"My message for voters is very simple," she said. "We have to vote yes on an initiative that changes our constitution so that if something happens at the Supreme Court — remember one of the justices said 'we're not sure that LGBT stuff was right either' — we don't want to wait for that. I don't care, Supreme Court — in California, you can marry whoever you want."
Gay state Senator Scott Wiener (D-San Francisco) was not able to attend the event as initially announced. He and gay Assemblymember Evan Low (D-Cupertino) introduced the ACA 5 legislation last year, as the Bay Area Reporter previously reported.
"This is clearly a reflection of many generations who helped us to where we are today," Low said during the event. "So many were not of voting age during this period of time [referring to Prop 8]. We must continue to foster the importance of democracy and must not lose sight our rights can be easily taken away."
(Low is now running for an open congressional seat in the South Bay on the March 5 primary ballot.)
Bamby Salcedo, a trans woman who is president and CEO of the TransLatin@ Coalition, mentioned the right-wing attacks on transgender rights in states across the country. In California, there is a signature-gathering effort underway to place an anti-trans initiative on the November ballot that targets gender-affirming care for minors and trans students' ability to play on sports teams aligned with their gender identity. It would also require parental notification if a trans student comes out by requesting a different name be used at school than their legal name.
"We have bigoted politicians that continue to pass legislation and policy — not just going against the LGBT community, but specifically targeting the trans community," she said. "We also know the Supreme Court has systematically rolled back reproductive rights and has foreshadowed decisions that could turn back marriage equality on the federal level."
In a Politico column Wednesday morning, it was reported that EQCQ, the TransLatin@ Coalition, and the national Human Rights Campaign would be leading the campaign.
The B.A.R. asked how much of a presence HRC has in California now and what kind of resources it will contribute to the campaign. HRC was not represented on the conference call.
Hoang answered, "The HRC is a key member of this executive committee for the Freedom to Marry ballot initiative. Obviously, they have robust membership in the state of California with steering committees in the major markets. ... I won't speak for them now, but I know this is a big priority for HRC."
HRC did not return a request for comment.
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