Political Notes: Oakland leaders push repealing CA's 'zombie' same-sex marriage ban

  • by Matthew S. Bajko, Assistant Editor
  • Friday July 22, 2022
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Oakland City Councilmember Sheng Thao, left, and City Councilmember and Vice Mayor Rebecca Kaplan have authored a resolution calling on state lawmakers to bring to the voters a repeal of California's 'zombie' same-sex marriage ban known as Proposition 8 as early as this year. Photos: Courtesy the subjects
Oakland City Councilmember Sheng Thao, left, and City Councilmember and Vice Mayor Rebecca Kaplan have authored a resolution calling on state lawmakers to bring to the voters a repeal of California's 'zombie' same-sex marriage ban known as Proposition 8 as early as this year. Photos: Courtesy the subjects

Two Oakland city councilmembers have authored a resolution calling on state lawmakers to bring to the voters a repeal of California's 'zombie' same-sex marriage ban known as Proposition 8. The council is set to vote on it Tuesday, and if adopted, would be the first to officially support repealing the anti-LGBTQ constitutional amendment adopted in 2008 by a slim majority of Golden State voters.

Prop 8 is still technically a part of the state constitution even though federal lower courts found it to be unconstitutional. In 2013, the U.S. Supreme Court let those decisions stand, paving the way for same-sex marriages to resume in California that summer.

Two years later, in its Obergefell v. Hodges decision, the U.S. Supreme Court made marriage equality the law of the land nationally. But its recent decision to rollback the federal right to abortion has raised the specter of seeing a future ruling from the conservative-dominated court that would end same-sex couples' right to wed.

Justice Clarence Thomas' concurring opinion in Dobbs v. Jackson Women's Health Organization calling for the court to re-examine its decision in Obergefell has raised such fears regarding the fate of marriage equality. It has led California LGBTQ lawmakers and advocates to discuss bringing a repeal of Prop 8 back to the voters, as there is concern that Prop 8 could become law again.

As the San Francisco Chronicle recently reported, the advocates already have draft language drawn up to repeal Prop 8 but decided not to bring it before voters on the general election ballot this fall. Instead, they are eying the November 2024 ballot. The decision to wait two years to put the question to voters was driven by three major factors: a desire to focus on abortion right now, poor timing amid a midterm election year, and the need to raise lots of money, the paper reported. (California voters will see an initiative, Proposition 1, on the November ballot to decide whether to guarantee a right to abortion in the state constitution.)

But Oakland Council President Pro Tempore Sheng Thao and Vice Mayor Rebecca Kaplan, a married lesbian who just announced the birth of her first child, support moving forward with repealing Prop 8 this year, a spokesperson for Thao told the Bay Area Reporter. While state lawmakers can qualify a referendum for the ballot up to 31 days before an election, according to the Secretary of State's office, the deadline has passed to qualify a ballot measure for this year's ballot, which is what those involved in the repeal effort say is needed to excise Prop 8 from the constitution.

"Yes if it is still possible. Waiting until 2024 is a big big risk for tens of thousands of families, including Rebecca's," wrote Brandon Harami, a queer man who is a council aide to Thao, in an emailed reply to the B.A.R.

Harami shared the councilmembers' resolution with the B.A.R. ahead of its official release Friday (July 22). It notes that "the California state Constitution, though not perfect, needs to be fine-tuned to ensure the rights of same-sex couples."

In prepared remarks, Thao said that Thomas "is not in line with the voice of the American people crying out loud for equality and freedom." Without taking "immediate action" she raised the possibility of seeing same-sex couples in California once again being denied marriage rights.

"It is far-past time to finally put an end to the 'zombie' Proposition 8 that remains ingrained in our constitution. As an elected official in the city of Oakland, I am urging the California State Legislature to put a measure repealing Proposition 8 onto the ballot as soon as possible," stated Thao, who formerly worked as an aide to Kaplan and is now running this fall to be elected Oakland mayor. "If we do not and the Supreme Court revokes marriage equality, millions of same-sex couples will immediately have their marriages voided and will be left to their own devices."

Kaplan serves in the at-large seat on the council and is running in November to be elected as the first LGBTQ member of the Alameda County Board of Supervisors. She and her wife, Kirthi Nath, announced on Monday, July 18, the birth of a "wonderful daughter," their first child.

"As the Supreme Court threatens to dismantle our fundamental rights to love who we love, California cannot stay silent on the ugly legacy of Proposition 8, which remains enshrined in the State Constitution," stated Kaplan. "Should the Supreme Court continue on its dangerous path and strip LGBTQ+ people of our fundamental liberties, there are actions we must take, not only to protect those freedoms central to individual choice and autonomy, but to ensure our LGBTQ+ community can grow and thrive."

The Oakland City Council is set to vote on the resolution when it meets Tuesday, July 26. It is expected to pass with a unanimous vote from the eight council members.

"Being a longtime activist for social justice, the first openly lesbian member of the Oakland City Council, and a new parent in a proud queer family, I am calling on our governor and the state Legislature to take action to place a state initiative on the ballot to amend the California Constitution, repeal Proposition 8, and ensure LGBTQ+ people in California can marry who they love," stated Kaplan.

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