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PUBLISHER’S NOTE:
Yes on Proposition 3 and Los Angeles Blade will present an urgent Town Hall on October 28 from 7:00 PM at St. Thomas Episcopal Church, 7501 Hollywood Blvd, Los Angeles, CA 90046. For more information or to RSVP, click here.
As California voters prepare for the Election Day ballot, they have a critical opportunity to address a potentially dangerous inconsistency in the state’s constitution regarding the rights of same-sex couples to marry.
Think of it as a firewall against a potential 2nd Trump administration and Supreme Court effort to overturn same-sex marriage.
Proposition 3, the Right to Marry and Repeal Proposition 8 Amendment, seeks to remove outdated language from the Prop 8 era, a ballot initiative that successfully defined marriage as solely between a man and a woman.
Although federal court rulings have rendered this language unenforceable, it has lingered in California’s constitution since 2008.
Proposition 3 would not only eliminate this vestigial language but also establish a constitutional right to marriage regardless of gender or race.
The history of Prop 8 is a complex and contentious chapter in California’s past. Passed in the 2008 state election, Prop 8 effectively banned same-sex marriage, following a California Supreme Court ruling that had declared a previous ban (Proposition 22 from 2000) unconstitutional. Prop 8 added language to the state constitution stating that “only marriage between a man and a woman is valid or recognized in California.”
The passage of Prop 8 shocked many who viewed California as a bastion of progressive values, highlighting a divide within the state and igniting intense debate and legal battles. Religious organizations, particularly the Roman Catholic Church and the now somewhat repentant Church of Jesus Christ of Latter-day Saints, played significant roles in supporting Prop 8, with the LDS Church notably contributing more than $20 million to the campaign and mobilizing volunteers for door-to-door canvassing.
The legal journey of Prop 8 has been long and complex. Initially upheld by the California Supreme Court in 2009, it was later challenged in federal court. In August 2010, Chief Judge Vaughn Walker of the U.S. District Court for the Northern District of California ruled Prop 8 unconstitutional under both the Due Process and Equal Protection Clauses of the 14th Amendment. This decision was upheld by the Ninth U.S. Circuit Court of Appeals in 2012, albeit on narrower grounds.
The case ultimately reached the U.S. Supreme Court in “Hollingsworth v. Perry” (2013). However, rather than ruling on the merits of same-sex marriage, the Court decided that the proponents of Prop 8 lacked legal standing to defend the law in federal court. This effectively upheld Walker’s 2010 ruling, paving the way for the resumption of same-sex marriages in California.
The uncertain landscape of LGBTQ+ rights
The current Proposition 3 arises from recent concerns about the stability of LGBTQ+ rights at the federal level. Following the U.S. Supreme Court’s 2022 decision to overturn Roe v. Wade, Justice Clarence Thomas suggested reconsidering other precedents, including the 2015 Obergefell v. Hodges decision that legalized same-sex marriage nationwide. This potential threat prompted California legislators to act proactively to safeguard marriage equality at the state level.
Moreover, 2024 has seen a surge of anti-LGBTQ+ legislation across the nation and in Congress. “Extremist lawmakers in Congress failed in their hateful attempts to add anti-LGBTQ+ provisions to must-pass spending bills. These measures would have restricted medically necessary health care for transgender people, allowed taxpayer-funded discrimination against married same-sex couples, and further stigmatized the LGBTQ+ community,” said a spokesperson from Equality California.
Strong bipartisan negotiations led to the removal of 51 of 52 anti-LGBTQ+ riders, thanks in large part to the efforts of the Congressional Equality Caucus and the relentless advocacy of LGBTQ+ organizations. Speaker Mike Johnson — considered the most anti-LGBTQ+ speaker in history — attempted to slow the appropriations process with these “poison pill” amendments, leading the country to the brink of a government shutdown multiple times.
Despite his failures, Johnson is attempting to claim victory by highlighting a limited provision that prohibits the flying of Pride flags on embassy buildings, which imposes no limits on other displays of the flag. “While we are disappointed in the passage of this provision, it is important to consider it in the context of the overwhelming defeat of other measures. The Speaker’s attempt to use this as a symbol of victory is as laughable as his dysfunctional term as Speaker has been,” the spokesperson added.
The fragility of rights
The overturning of Roe v. Wade has sent shockwaves through the legal community, particularly among LGBTQ+ advocates. The decision raised alarms about the vulnerability of other civil rights protections, including marriage equality. Legal experts are now grappling with unprecedented questions about how to secure these rights amid a shifting judicial landscape.
The fragility of unenumerated rights — those not explicitly written in the Constitution but granted through Supreme Court interpretation — has become increasingly apparent. Marriage equality, like abortion rights, falls into this category and has been upheld through the 14th Amendment’s due process clause. However, Thomas’s opinion in the Dobbs case hints at a willingness to reexamine these precedents.
A significant concern for marriage equality advocates is the idea that rights relying on due process must be “deeply rooted in this nation’s history and tradition.” Since nationwide marriage equality is only seven years old, it lacks the historical foundation that might protect it from future challenges.
The patchwork possibility
If Obergefell were overturned, the U.S. could revert to a patchwork of marriage laws reminiscent of the pre-2015 era. According to the Movement Advancement Project, as many as 32 states could potentially revert to banning same-sex marriages. This scenario would create a stark divide across the country, with some states recognizing LGBTQ+ marriages while others outlaw them.
Such a reversion would have far-reaching implications for hundreds of thousands of couples who have married since Obergefell. While it’s unlikely that existing marriages would be invalidated, the legal status of these unions could become uncertain. This potential outcome underscores the urgency of enshrining marriage equality in state constitutions and laws.
The challenge of codification
While some lawmakers have expressed interest in codifying marriage equality at the federal level, legal experts are divided on whether Congress has that authority. Traditionally, marriage laws have fallen under state jurisdiction, complicating efforts to establish federal protections.
This uncertainty adds pressure to state-level efforts to protect marriage equality. In states with existing bans, securing marriage rights would require constitutional amendments or ballot measures, necessitating extensive public education campaigns and grassroots organizing.
The importance of proactive constitutional change
Despite California’s progressive reputation, the state constitution still contains language that could be used to restrict same-sex marriages if federal protections were overturned. This highlights the importance of Prop 3.
Currently, 35 states maintain constitutional or statutory bans on same-sex marriage. Although these bans are unenforceable due to the Obergefell decision, they could be reactivated if the Supreme Court were to overturn that ruling. California, despite its forward-thinking values, is among these states due to the lingering effects of Prop 8.
Without the passage of Prop 3, California could face a situation where existing same-sex marriages remain valid, but new marriages could be denied. This potential legal limbo underscores the urgency of updating the state constitution to explicitly protect marriage equality.
By passing Prop 3, California would not only eliminate discriminatory language from its constitution but also create a robust state-level protection for same-sex marriages. This proactive approach would ensure that, regardless of future federal court decisions, the right to marry would remain secure for all Californians.
The path forward
The journey to this point reflects a remarkable shift in public opinion. In 1996, 68 percent of Americans opposed legalizing same-sex marriage. By 2023, that figure had flipped, with 71 percent supporting marriage equality. This change crosses party lines, with a majority of Republicans now in favor. The trend is particularly strong among younger voters, indicating a generational shift toward greater acceptance and equality.
The importance of Prop 3 extends beyond its practical effects. While same-sex marriages are of course recognized in California, enshrining this right in the state constitution provides an additional layer of protection against potential future challenges. Moreover, it represents a formal acknowledgment of past mistakes and a clear statement of California’s values of equality and inclusion.
Critics of Prop 3 have raised concerns about its potential to open doors for challenges to laws against polygamy or underage marriages. However, these arguments are misleading. Constitutional rights are not absolute and can be limited by compelling state interests, as seen with other fundamental rights like freedom of speech.
This situation highlights the ongoing nature of the struggle for equal rights and the importance of vigilance in protecting hard-won freedoms. Prop 3 represents an opportunity for California to lead by example, demonstrating how states can take concrete steps to safeguard the rights of their LGBTQ+ citizens in an uncertain legal landscape.
As the November election approaches, California voters can align the state’s constitution with the prevailing values of equality and inclusivity. By voting yes on Prop 3, Californians can eliminate the last remnants of discrimination from their constitution and send a clear message that bigotry has no place in California’s fundamental laws.
In a time when LGBTQ+ rights face renewed challenges across the nation, California has the chance to reaffirm its status as a progressive leader and to correct a long-standing injustice in its constitution.
Prop 3 is not just about changing words in a document; it’s about enshrining the principle that love and commitment deserve equal recognition under the law, regardless of who you are or whom you love.
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Gisselle Palomera
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