Prop. 8 is scrutinized amid shield for same-sex nuptials
The federal government is set to ensure that same-sex and interracial marriages would be recognized by the federal government and all states in the event that the Supreme Court walks back marriage rights.
The Respect for Marriage Act would protect couples in states that might otherwise decline to recognize certain marriages in the event existing protections were rolled back. But in California, progressives are already setting their sights beyond federal legislation. Their focus is squarely on erasing Prop. 8 from the state constitution.
The Respect for Marriage Act passed the Senate with bipartisan support Tuesday — 12 Republicans voted in favor of the measure — after religious protections were added. The revised bill is expected to pass the House easily in the coming days.
The measure repeals the 1996 Defense of Marriage Act, which required that the federal government only recognize marriages between a man and a woman and allowed states to refuse to recognize same-sex marriages as well. The bill is expected to pass the Senate and House and be signed by President Biden, but it is about the furthest the federal government can go with same-sex marriage protections. Any more protections, including requiring states to issue a marriage license to samesex couples, would need to be done on the state level.
The California Constitution still includes Prop. 8, a 2008 voter initiative that banned same-sex marriage in the state but was later overturned by the courts. LGBTQ advocates fear that a Supreme Court decision invalidating marriage equality would once again make Prop. 8 the law of the land in California.
“We need to get this scar out of our Constitution and move forward,” said state Sen. Scott Wiener, D-San Francisco. “We have to do our work at the state level. That’s on us.”
Many LGBTQ advocates have been concerned that the Supreme Court could overturn the Obergefell v. Hodges decision — which required all states to legalize same-sex marriage — in light of the decision to reverse Roe v. Wade, which guaranteed the right to an abortion. In a concurring opinion in that case, Justice Clarence Thomas wrote that the court should “reconsider all” its precedents related to marriage equality, antisodomy laws and contraception.
“We have a member of the United States Supreme Court who has openly, publicly and officially stated his desire to revisit Obergefell and there is no question it is his desire to take away my marriage and the marriage of tens of thousands of other Americans,” said Palm Springs Mayor Lisa Middleton, the first transgender mayor in California.
Following the reversal of Roe, Senate Democrats have made it a top priority to ensure that same-sex marriages would be recognized in the event that the court followed Thomas’ lead on revisiting marriage rights.
“It’s certainly not enough, but it is an important step in the right direction and goes about as far as it can within the bounds of federal law,” said Samuel Garrett, spokesperson for LGBTQ advocacy group Equality California.
Many California officials said the bipartisan support for the Respect for Marriage Act was heartening.
“Even though it doesn’t solve our whole problem, and we still have to go to the ballot on Prop. 8, it’s still monumental that the bill is going to pass Congress with the support” of so many Republicans, Wiener said.
Assembly Member Evan Low, D-San Jose, who chairs the California Legislative LGBTQ Caucus, said the importance of the federal legislation is that it won bipartisan support, “which, frankly, in many of our lifetimes, we would never even imagine at the federal level.”
The bipartisan nature of the federal bill shows that “you can be for LGBT equality and be for protection of religious freedom,” Low said, adding that he hopes it will lead to changes addressing other LGBTQ rights, such as protections against discrimination in public accommodations, education, employment and housing.
“The issue of marriage equality has been debated and debated, and now it has become a reality for tens of thousands of gay and lesbian couples. And it matters that our unions are recognized and that they are not in jeopardy,” Middleton said.
Because Prop. 8 is enshrined in the state Constitution, voters must approve its removal. The California LGBTQ Legislative caucus is discussing putting a repeal of Prop. 8 on the ballot in 2024, Wiener said.