California, a U.S. trendsetter for progressive policies and a state where the current governor once made news issuing marriage licenses to same-sex couples in San Francisco before it was legal, will attempt to enshrine marriage equality in the state constitution.
The effort comes 15 years after a voter-approved initiative, Proposition 8, banned the state from recognizing same-sex marriages. In 2013, the U.S. Supreme Court cleared the way for same-sex marriage in California. The constitutional amendment is still on the books, however, and that worries advocates who think the high court may revisit the 2015 case that legalized gay marriage nationwide.
“It’s absolute poison, it is so destructive and it’s humiliating that this is in our constitution,” said Scott Wiener, a state senator who represents San Francisco.
Wiener and Assembly Member Evan Low of Silicon Valley, both Democrats and members of the California Legislative LGBTQ Caucus, introduced legislation Tuesday to rescind Proposition 8. The measure would need to be approved in the Legislature by a two-thirds vote, and then it will ultimately fall to voters to decide via a referendum.
Gov. Gavin Newsom announced his support for the repeal.
“It’s time that our laws affirm marriage equality regardless of who you are or who you love," the Democrat said. "California stands with the LGBTQ+ community and their right to live freely.”
In the days leading up to Proposition 8′s approval, Low joined opponents of the measure outside his alma mater De Anza College in Cupertino, California, to call on voters to reject the initiative. When it passed, it felt personal to Low, who is gay.
California
“Why do fellow Californians hate me?” he said. “Why do they feel that my rights should be eliminated?”
California could follow in the footsteps of Nevada, which in 2020 became the first state to amend its constitution to ensure the right to same-sex marriage. The matter took on fresh urgency last year when the U.S. Supreme Court overturned the right to an abortion established by Roe v. Wade. At the time, Supreme Court Justice Clarence Thomas called into question other prominent cases and urged the court to reconsider them. His list included Obergefell v. Hodges, which forced states to issue and recognize same-sex marriages.
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"In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell," Thomas wrote, referencing two other landmark cases involving access to birth control and a decision striking down laws against same-sex sexual activity.
In December, President Joe Biden signed into law the Respect for Marriage Act, which requires states to recognize same-sex marriages, but the legislation doesn’t force states to allow them if Obergefell is overturned.
Wiener and Low, the two California lawmakers, hope to replicate the process under which state voters in November approved a constitutional change guaranteeing the right to abortion.
Jeremy Yancey and Fabio de Andrade, who got married Tuesday at a Valentine's Day celebration at San Francisco City Hall, said Proposition 8's repeal is overdue.
“It's about time. Protecting our rights as human beings is very vital,” Yancey said. “It should've happened many years ago.”
Assembly Member Greg Wallis, a Republican representing part of San Bernadino County, said in a statement that he was proud to co-author the legislation.
“The reality is that marriage is a contract and commitment between any two people in love, and it's high time we make that clear,” Wallis said.
The path to marriage equality in the Golden State was uneven. In 2000, voters approved a statute that banned the recognition of same-sex marriages, a measure that was overturned by the courts. Newsom, who became San Francisco's mayor in 2004, issued marriage licenses to same-sex couples in the city in a move that defied the law and ran counter to views then held by many in his party. In 2005, the California Legislature was ahead of all other states when it passed a bill to legalize same-sex marriage. But then-Gov. Arnold Schwarzenegger, a Republican, vetoed it.
Support for marriage equality has rapidly expanded since the Obergefell ruling. While Mormon groups helped fund the Proposition 8 campaign in California, The Church of Jesus Christ of Latter-day Saints came out in support of the Respect for Marriage Act.
Tony Hoang, executive director of Equality California, is optimistic the group can help build a large supportive coalition for the proposed amendment.
“I know this will be a bipartisan campaign,” he said.
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Associated Press journalist Terry Chea in Fremont, California contributed to this report.
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Sophie Austin is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues. Follow Austin on Twitter: @sophieadanna
