California moves to dump Proposition 8 from constitution

(CN) — Calling the U.S. Supreme Court too untrustworthy to protect the rights of LGBT citizens, two gay California legislators have introduced a constitutional amendment which would both enshrine same-sex marriage rights and strike discriminatory language introduced into the state constitution with the passage of Proposition 8.

State Senator Scott Wiener and Assemblymember Evan Low, Democrats from San Francisco and San Jose respectively, introduced a constitutional amendment Tuesday to repeal Proposition 8, which banned same-sex marriage in 2008.

“Prop 8 was a hateful attack on LGBTQ people & remains a scar on our constitution,” Wiener said on Twitter early Tuesday. “Given the Supreme Court’s direction, it’s time.”

Calling California a leader in LGBT rights, Low said it's important that the state constitution reflects those values.

“Californians believe in love, simply put,” said Low. “Repealing Proposition 8 is the right thing to do to ensure that marriage equality is protected now and for future generations.”

California voters passed Proposition 8 by a margin of 52% to 48%, a difference of about 600,000 votes, only a few months after the California Supreme Court had ruled the state’s earlier prohibition on same-sex marriage was unconstitutional. But in 2010, then-U.S. District Judge Vaughn Walker ruled Proposition 8 was unconstitutional, a decision which was later upheld by the Ninth Circuit Court before being appealed to the U.S. Supreme Court.

The nation's highest court ducked the larger issue of same-sex marriage at the time, ruling instead the sponsors of Proposition 8 didn’t have standing to appeal when state officials refused to do so. On June 28, 2013, same-sex marriage in California resumed two years before the U.S. Supreme Court extended the right across the country.

Activists for LGBT rights in the state worry if the U.S. Supreme Court reverses itself on same-sex marriage — as it did on Roe v. Wade this past year in Dobbs v. Jackson Women's Health Organization, the presence of Proposition 8’s language in the state constitution would make a ban on same-sex marriage state law again.

This past November, President Joe Biden signed the bipartisan Respect for Marriage Act repealing the 1996 Defense of Marriage Act, which allowed states to refuse to recognize same-sex marriage while requiring the federal government to only recognize marriage between a man and a woman.

In a statement, Low and Wiener called the Respect for Marriage Act an important step forward — it requires the federal government to recognize both same-sex and interracial marriages and requires the states to honor marriage licenses from outside their borders — but noted a serious shortcoming: it does not require states to issue licenses to same-sex couples.

“Although marriage equality is currently protected by Judge Vaughn Walker’s 2010 ruling striking down Prop 8 and the 2015 Supreme Court decision in Obergefell, it has become increasingly clear that the Supreme Court cannot be trusted to protect our civil rights and liberties,” the two legislators said in the statement. “If the court was willing to overturn five decades of precedent guaranteeing the right to abortion (as they did with the Dobbs decision last year), it cannot be assumed it will uphold less than a decade of precedence protecting marriage equality, particularly in light of statements made by Justices Thomas and Alito referring to Obergefell as a ‘problem’ and ‘threat.’”

In the landmark Obergefell v. Hodges, the Supreme Court determined the due process and equal protection clauses of the 14th Amendment guaranteed same-sex couples' fundamental right to marry.

Assuming the amendment passes the Legislature, voters would be tasked with approving it on the November 2024 ballot. The Bay Area Reporter, San Francisco’s LGBT newspaper of record, reported "it is unclear who would run the campaign to repeal the Prop 8 language from the state constitution, an effort that is expected to cost tens of millions of dollars.”

Four civil rights organizations have stated their support for the proposed amendment. Leaders of the American Civil Liberties Union, the National Center for Lesbian Rights, the Human Rights Campaign Fund, and Equality California all made statements promising their support for the effort.

“Especially when LGBTQ+ people are under attack in so many states across the country, it is more essential than ever that California lead the way in affirming the equal dignity of every person, regardless of their race, religion, ethnicity, ability, gender, sexual orientation or gender identity,” Imani Rupert-Gordon, executive director of the National Center for Lesbian Rights said in a statement. “Repealing Prop 8 is an important part of a much larger battle.”

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