California’s Constitution Does Not Recognize Marriage Equality. Prop. 3 Will Fix That – edhat

California has long been praised — and criticized — for its progressivism, but when it comes to marriage equality, the state has a somewhat complicated history. If passed in November, Proposition 3 would effectively end a decades-long fight to recognize same-sex marriage in California.

Despite being legal at the federal level since the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, California’s constitution still prohibits same-sex marriage. Prop. 3 would formally repeal this so-called zombie law and further emphasize in the constitution that “the right to marry is a fundamental right.”

While the measure won’t necessarily change anything for LGBTQ+ people in California, it does provide solid legal protections for same-sex couples that Justice Clarence Thomas said the Supreme Court “should reconsider.”

The constitutional change would also demonstrate California’s broader support for the LGBTQ+ community, which has faced conservative backlash in recent years from transgender people pushing for anti-transgender legislation, a book ban and a mandatory school exclusion policy.

Shannon Minter, legal director at the National Center for Lesbian Rights and an attorney who has argued in court against recent California campaigns to restrict marriage rights, such as Proposition 22 and Proposition 8, believes the amendment is necessary to protect not only marriage equality but the foundations of our republic.

“Equal protection is essential to having a democratic form of government. If everyone is not equal under the law, you don’t have a democracy,” Minter said.

Californians have voted down civil rights protections for LGBTQ+ people twice in the past 20-plus years, but even decades before those debates, there was a fight to allow openly gay teachers in California schools — a situation that, all things considered, flies in the face of the state’s progressive image.

In 1978, Republican state legislator John Briggs backed Proposition 6—commonly known as the Briggs Initiative—which would have required schools to fire teachers if the school board determined they were engaging in “homosexual activity” or “homosexual conduct.” California’s LGBTQ+ people mobilized a massive grassroots campaign, aided in part by queer residents who came out to their loved ones and neighbors in huge numbers, demonstrating their widespread presence in public life.

The movement ultimately aimed to show the humanity of LGBTQ+ people, and it succeeded: Prop. 6 was voted down. But the battle for marriage equality was just beginning.

Californians first rejected the idea of ​​same-sex marriage in 2000, when voters approved Prop. 22, which legally defined marriage as between a man and a woman. After years of fighting in the legislature and the courts, the California Supreme Court overturned it in 2008, allowing same-sex couples to marry.

State Sen. John Laird, a Santa Cruz Democrat and co-sponsor of the bill that became Prop. 3, still remembers the moment he learned he could finally marry his partner of 15 years.

“I was standing in the back of the House chamber, and the speaker’s press secretary started crying and couldn’t even tell me,” Laird recalled in a recent interview. “He hands me the phone, and it says the Supreme Court has ruled in favor of marriage equality. So I take out my phone, grab my spouse at work, and propose.”

The couple married in September. But months later, California voters rejected marriage equality again. This time, opponents left no room for ambiguity: Voters approved Prop. 8, which defined marriage as between a man and a woman in the state constitution.

“(Proposition 8) literally changed … the equal protection clause of the California Constitution to create an exception that allows the state to discriminate against same-sex couples in marriage,” Minter told me.

Minter and others fought the measure in court for years until a federal judge ruled in 2013 that it violated the Equal Protection Clause of the U.S. Constitution. The clause has remained dormant in the state’s governing document ever since.

Compared with previous attempts to sway voters on the issue of marriage equality, there was little campaigning against Prop. 3. Many conservatives were reluctant to oppose marriage equality because of its popularity with voters, fearing triggering a backlash that has strengthened Democrats since the Dobbs v. Jackson Women’s Health Organization decision overturned Roe.

Proposition 3 is now widely expected to pass: Public support for marriage rights has finally caught up with the legal arguments—and that support matters a lot.

A year ago, the Human Rights Campaign declared a state of emergency for LGBTQ+ Americans. As someone whose mere presence has been a political statement throughout his administration, Laird told me it’s important to acknowledge the shift in public opinion.

A Republican lawmaker and his wife once joined Laird and his partner on a business trip, and afterward, the lawmaker told Laird that the experience helped change his view of same-sex marriage.

“He said, ‘You know, you’re really nice people and special, and we really enjoyed spending time with you, and I’m going to have to think about this marriage thing,’” Laird told me. “We got married shortly after that, and he gave us a wedding present.”

Something as simple as spending time with LGBTQ+ people has the power to normalize their existence for people who haven’t met them yet, which is true for any underrepresented community. Now that so many LGBTQ+ people can safely come out and talk about their identities, more people are realizing they have queer loved ones and friends—people whose civil rights they don’t want to deny.

After decades of legal battle over LGBTQ+ rights, California voters now have an opportunity to tell their neighbors, friends, colleagues and children that they unequivocally deserve the same civil rights as everyone else.