How the Stain of Prop. 8 May Be Removed From California

California’s Proposition 8, which revoked same-sex couples’ right to legal marriage in the state, has been unenforceable since a U.S. Supreme Court ruling in 2013. But its discriminatory language remains in the California constitution, and now some state lawmakers are doing something about that.

Assemblymember Evan Low and Sen. Scott Wiener, both gay Democrats, Monday introduced Assembly Constitutional Amendment 5, which would amend the state constitution to remove language saying that marriage is only between a man and a woman and add a statement that “the right to marry is a fundamental right.” It would safeguard against any attempt to ban or restrict marriage for same-sex or interracial couples.

“Marriage equality is a fundamental right, and voters deserve the opportunity to remove a black mark from the California constitution,” Low said in a press release.

“Although same-sex marriage is legal, it could be temporary,” he added. “We have to remain vigilant, unwavering in our dedication to equality. Together, we can reinforce the importance of love, acceptance, and inclusivity. Our journey towards true equality is not over, and this is a foundational step in making progress and change here in the Golden State.”

Voters approved Prop. 8 in November 2008, a few months after the California Supreme Court had ruled for marriage equality in the state. Two couples sued to challenge Prop. 8, and California attorneys general — first Jerry Brown, then Kamala Harris — refused to defend it in court, so a right-wing group took up the defense. After a federal judge found that Prop. 8 violated the U.S. Constitution, the group appealed, going all the way to the U.S. Supreme Court, which ruled that the organization did not have legal standing to defend it, thus letting the lower court’s decision stand and rendering the marriage ban unenforceable.

But courts and lawmakers can change; an example of the former was the U.S. Supreme Court’s Dobbs decision last year, overturningRoe v. Wade and allowing states to ban or severely restrict abortion. Right-wing Justice Clarence Thomas declared he’d like to go after marriage equality next. So Congress and President Joe Biden responded by passing the Respect for Marriage Act, which assures that the federal government will recognize the marriages of same-sex and interracial couples and that states will recognize those performed in other states. But it doesn’t require any state to offer equal marriage rights, and so states could enact restrictions if the high court’s Obergefell v. Hodges ruling, which established marriage equality nationwide, is overturned.

In a follow-up interview with The Advocate, Low noted the possibility of a negative U.S. Supreme Court ruling on marriage equality if such a case is presented to the justices; another conservative on the court, Samuel Alito, has also said he'd like to see Obergefell reversed. If that happens, states can decide whether same-sex couples can marry within their borders.

People may take it for granted that liberal California will always have marriage equality, but no one should be complacent about that, Low said. The state isn't immune from the rash of anti-LGBTQ+ legislation sweeping the nation; this year some Republicans in the Assembly introduced a bill that would require teachers to out transgender students to their parents. It didn't even get a hearing, but the fact that it was even introduced carries a warning, the legislator pointed out.

"There is no safe place, and that's why we all must be vigilant," he said.

He recalled November 2008, when Prop. 8 passed, as "a very dark month for our community." Approval of the amendment sent him into a deep depression, he noted. But with the new amendment, authored by himself and Wiener, voters have a chance to make things right, he said.

ACA 5 requires the approval of two-thirds of the members in each chamber of the California legislature and will then be referred to voters for approval in the November 2024 general election. It has bipartisan support, Low said, and 31 senators and 42 Assembly members have already signed on as coauthors of the legislation, including the Senate president pro tem, the Assembly speaker, and the Assembly speaker designate.

Pictured, from left: California Sen. Scott Wiener and Assemblymember Evan Low