In 2008 California voters outlawed same-sex marriage by passing Proposition 8, an infamous ballot measure largely funded by the Mormon Church. But voters just learned what ballot initiatives they’ll be voting on this November, and among them is Proposition 3, a law that would enshrine the right to same-sex marriage in the state Constitution, effectively undoing Prop 8.
The measure will ask voters to approve a “fundamental right to marry” and remove language that defines marriage as solely between a man and a woman.
It’s a redo for voters in the Golden State of a notorious decision they made in 2008.
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The history of marriage equality in California is a veritable roller coaster ride, starting in 2004 when then-mayor of San Francisco Gavin Newsom directed city officials to start issuing marriage licenses to same-sex couples. Newsom said the California Constitution’s equal protection clause gave him the authority to do so.
Both Newsom and the San Francisco District Attorney at the time, Kamala Harris, were among those who officiated approximately 4,000 same-sex marriages in the city from February 12 to March 11, before the State Supreme Court overturned Newsom’s directive.
Lawsuits followed, and the court reversed itself in 2008, legalizing marriage equality in California, the second state to do so after Massachusetts in 2003.
The reprieve wouldn’t last long.
Two weeks before the state court’s decision, opponents of same-sex marriage, funded with $20 million by the Mormon church, managed to get a constitutional amendment on the general election ballot plainly titled “Eliminates Right of Same-Sex Couples to Marry Act.”
Remarkably, on the same night Barack Obama was swept into office as the first Black American president, California voters outlawed same-sex unions with 52% of the vote.
Marriage equality advocates were gobsmacked.
But five years later, the U.S. Supreme Court ruled California’s ban as unconstitutional. The same year, the high court struck down the so-called Defense of Marriage Act — which forbade the federal government from recognizing same-sex marriages. By 2015, marriage equality was the law of the land with the U.S. Supreme Court’s landmark Obergefell v Hodges decision.
But nearly 16 years after the passage of Proposition 8 shocked the state and the nation, the discriminatory “zombie” act outlawing same-sex marriage remains in the California Constitution.
Prop 3, authored by State Assemblymember Evan Low (D) of Silicon Valley and State Sen. Scott Weiner (D-SF), will take out the trash.
Low, who’s running for a seat in Congress this fall, told LGBTQ Nation in an interview earlier this year that repealing the act is a moral obligation as well as a practical concern, following the Supreme Court’s Dobbs decision repealing the federal right to abortion. Justice Clarence Thomas has made clear other personal rights are in the conservative court’s crosshairs, making it all the more important to legally protect same-sex marriage rights.
“It’s in direct response to Roe v. Wade being overturned, because the Supreme Court said after Roe that marriage equality would be next,” said Low. “If they show you who they are, we need to believe that.”
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