California has changed since 2008 when it comes to attitudes about same-sex marriage, and that’s all to the good. Despite voting overwhelmingly for Barack Obama for president that year, the state’s electorate also passed Proposition 8, a constitutional ban on same-sex marriage.
Of course, those were different times. Even Obama said at the time that marriage was between a man and a woman. It didn’t take long for him and the California electorate to acknowledge that marriage is a right that is fundamental to all people.
A district judge ruled in 2010 that Proposition 8 was unconstitutional and in 2013, the U.S. Supreme Court declined to overturn that decision, ruling that the people appealing — proponents of the measure — lacked standing. The state of California refused to defend Proposition 8. By that time, a USC Dornsife/Los Angeles Times poll had already found that 58% of Californians believed that same-sex marriage deserved legal protection.
In other words, had Proposition 8 remained in force, Californians almost certainly would have brought the issue to the ballot again and voters almost certainly would have kicked that ugly constitutional amendment to the curb.
But because the measure had been defeated in the courts, there was no rush to remove it from the state Constitution. Until now.
The nationwide rumblings against protection for LGBTQ+ people — along with cruel legislation in some states — have been growing, just as they had against abortion rights before Roe vs. Wade was overturned. The U.S. Supreme Court has shown itself to be capricious and political, ignoring legal precedent time and again to carry out an agenda of extreme conservatism as well as protection for former President Trump in ways that defy the rules of democracy.
That means same-sex marriage could be subjected to the same ideological attack. Same-sex couples need official protection, which Proposition 3 on the Nov. 5 ballot would guarantee them. It would repeal Proposition 8’s wording and affirm marriage as a basic right in California so that whatever the courts may rule, those marriages will continue to be recognized in the state.
That’s the practical rationale to support Proposition 3. But there is an ethical and moral reason to remove it from the California Constitution as well: Though Proposition 8 has no force in the state, its abhorrent language is a reminder of less tolerant and understanding times. Proposition 3 is one way to say that the state recognizes its mistake and has learned better. A September poll by the Public Policy Institute of California found that 68% of likely voters support the measure.
Opponents have tried to chip away at that support by suggesting the broad language of Proposition 3 could lead to would-be polygamists or pedophiles attempting to overturn existing laws against multiple or child marriages. Don’t be fooled by that. No constitutional right is without exceptions; despite 1st Amendment freedom of speech, it’s still illegal to commit slander or libel, or yell “Fire” in a crowded building. Even if there were such lawsuits, which is doubtful, the courts have the authority to deny any such challenges when there is a compelling interest to keep current laws in place.
Proposition 3 gives Californians an opportunity to formally renounce a wrongful moment in our voting history and step forward to positively affirm that bigotry toward same-sex couples has no place in our state or its Constitution.
