The California Senate passed a proposed state constitutional amendment to protect same-sex marriage on Thursday.
Assembly Constitutional Amendment 5 (ACA 5), which was approved in a 31-0 vote with bipartisan support, would amend the California Constitution to protect the freedom to marry for gay and lesbian couples and remove the unconstitutional and discriminatory language from Proposition 8, which outlawed gay marriage, but was overturned by the U.S. Supreme Court in 2013.
“Repealing Prop 8 is an essential step in protecting the freedom to marry for millions of LGBTQ Californians,” Sen. Scott Wiener (D- San Francisco), one of the authors said in a statement in February when ACA was introduced. “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.”
Sen. Evan Low (D-Silicon Valley) is the other author.
Amending the state Constitution would help safeguard against any future attempts to restrict marriage rights for same-sex or interracial couples.
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Proposition 8 has yet to be repealed because it didn’t seem necessary, especially when California was allowed to resume issuing marriage licenses to same-sex couples and gay marriage was legalized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.
ACA 5 is scheduled to appear on the November 2024 ballot. It will require majority approval from California voters to amend the constitution.
In the coming months, a coalition of civil rights organizations and labor groups, including Equality California, will launch a statewide campaign to secure passage of the measure.
California could follow Nevada, which in 2020 became the first state to amend its constitution to ensure the right to same-sex marriage.