California Voters Have a Chance to Repeal Prop 8
A proposed constitutional amendment would repeal the ban on same-sex marriage and declare marriage a "fundamental right."
California voters will have a chance in 2024 to repeal Proposition 8, the now-defunct and unenforceable constitutional amendment that bans same-sex marriage in the state.
Last week, the California Senate passed a proposed constitutional amendment that would repeal Proposition 8 and establish the right to marry as a “fundamental right” regardless of gender.
The much-debated Proposition 8 was approved by California voters in 2008, but a federal judge ruled the law unconstitutional in 2010. In 2012, the 9th U.S. Circuit Court of Appeals upheld that decision on narrower grounds.
A year later, the U.S. Supreme Court paved the way for same-sex marriages to resume in the state, based on the fact that then-Gov. Jerry Brown and then-Attorney General Kamala Harris had refused to defend the law in court, and the court’s own findings that other proponents of the law did not have legal standing to challenge the lower court’s ruling.
Despite same-sex marriages resuming in the state, Proposition 8 — while unenforceable, both under the Supreme Court’s 2013 ruling and a subsequent ruling in 2015 overturning all state-level bans on same-sex marriages — has remained on the books, and can only be repealed by voters.
The proposed amendment repealing Proposition 8 overwhelmingly passed both chambers of the Democratic-dominated legislature, with all but one Senate Democrat voting in favor, while all eight Senate Republicans and 13 of the 18 Assembly Republicans choosing to abstain rather than vote for or against the proposal, reports the Associated Press.
The push for the amendment appears to be motivated by the idea that the conservative U.S. Supreme Court may one day reverse its own precedent and overturn its previous decisions allowing marriage equality, meaning any state bans still on the books would immediately become enforceable.
While Democrats have long vilified the voter-approved ban, they could have moved sooner to repeal it at any point within the past decade.
However, the Supreme Court’s recent lurch rightward on several social issues — following the confirmation of three conservative justices nominated by former President Donald Trump — appears to have led some on the political Left to take a more proactive approach by repealing the ban outright rather than relying on court decisions.
“What we are doing today is joyous,” Sen. Scott Wiener (D-San Francisco), an out gay man and one of 11 primary co-sponsors from both chambers, said during debate on the proposed amendment. “What the voters, I believe, will do next year is joyous. This is about recognizing the fundamental humanity of all 40 million Californians.”
Sen. Brian Dahle (R-Bieber), one of the Republicans who abstained from voting, cited religious objections to same-sex marriage as a reason he couldn’t vote for the amendment, according to the Associated Press.
“I truly, truly love so many of you that have lost your rights,” Dahle said, addressing LGBTQ lawmakers in the chamber. “This is about me. It’s not about our relationship. It’s about what I think I need to do in my faith.”
But Sen. Steve Padilla (D-San Diego), another co-sponsor of the amendment, argued that the vote should have nothing to do with personal religious beliefs.
“It is about whether the government we serve in a pluralistic society with many faiths treats us all equally before the law,” Padilla said.
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