Two California lawmakers want to repeal the state’s constitutional amendment that outlaws same-sex marriage and enshrine marriage equality for same-sex couples in the state constitution.
Their effort comes 15 years after Proposition 8, a voter-approved initiative, banned same-sex marriage in California.
But in 2013, the U.S. Supreme Court cleared the way for same-sex marriage in California; however, the California constitutional amendment is still on the books.
That fact worries advocates who think the nation’s high court may revisit the 2015 case that legalized gay marriage nationwide.
“Repealing Prop 8 is an essential step in protecting the freedom to marry for millions of LGBTQ Californians,” Scott Wiener, a Democrat state senator who represents San Francisco, said in a statement. “This scar on our Constitution is unconscionable, and it needs to be removed, especially with extremist Supreme Court justices threatening to overturn marriage equality. It’s time to send this issue to California voters to right this wrong.”
Wiener and Democrat Assemblymember Evan Low, of Silicon Valley, introduced ACA 5 Tuesday to rescind Proposition 8.
The Legislature needs to approve the measure by a two-thirds vote, and then it would go to a referendum and voters would decide.
The earliest it could appear on the ballot is November.
California could follow Nevada, which in 2020 became the first state to amend its constitution to ensure the right to same-sex marriage.
The issue took on fresh urgency last year when the Supreme Court overturned the right to an abortion established by Roe v. Wade. At the time, Supreme Court Justice Clarence Thomas set his sites on other prominent cases and urged the court to reconsider them.
His list included the court’s ruling in Obergefell v. Hodges, which, in 2015, forced states to issue and recognize same-sex marriages.
“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 certain sexual activity.
In December, President Joe Biden signed into law the Respect for Marriage Act. If Obergefell is overturned, it requires states to recognize same-sex marriages, but the legislation doesn’t require states to issue marriage licenses to same-sex couples.
Wiener and Low want to replicate the process state voters used in November to approve a constitutional amendment guaranteeing the right to abortion.
Proposition 8 has yet to be repealed because it didn’t seem necessary, especially when California was allowed to resume issuing marriage licenses to same-sex couples and gay marriage was legalized nationwide, Wiener said.
But that changed when the Supreme Court overturned Roe v. Wade, he said.