California’s Constitution doesn’t recognize same-sex marriage. Voters could change that
California voters will have the chance to remove language from the state Constitution that says marriage is only valid between a man and a woman.
After the legislation passed the Senate on Thursday, Californians will decide in November 2024 whether to accept ACA 5, introduced by Assemblymember Evan Low, D-Campbell, to remove the language from the state Constitution’s Declaration of Rights. The revision requires a vote on a ballot proposition from a majority of voters in California.
The language stating that marriage is only valid between a man and a woman was added in 2008, when California voters passed Proposition 8 with 52.2% voting in favor.
“This proposed constitutional amendment removes this scar from the California Constitution & affirms all Californians’ fundamental right to marry,” co-author Sen. Scott Wiener, D-San Francisco, tweeted Thursday.
Proposition 8 was deemed unconstitutional, first by a federal court ruling in 2010 and then by the U.S. Supreme Court’s Obergefell v. Hodges decision in 2015, which ruled same-sex marriage as protected by the 14th Amendment.
In the 15 years since voters passed Proposition 8, Californians’ stance on same-sex marriage has shifted: According to Equality California, an LGBTQ advocacy group, 71% of Californians support the legality of same-sex marriage.
“This amendment represents a progression, a really long progression,” said Sen. John Laird, D-Santa Cruz. “A lot of times what we do in the Legislature is to catch up with where the people are.”
ACA 5 passed the Senate 31-0. Some Senate Republicans abstained from voting, including Sen. Brian Dahle, R-Bieber.
“Today’s vote for me is about my faith,” said Dahle, the only Republican who spoke on the Senate floor during the vote. “My heart is with my Lord and savior. (This is) not about whether I judge you or not.”
LGBTQ advocates insecure in rights since Dobbs decision
Though the constitutional language currently holds no legal power because of the court decisions ruling it unconstitutional, marriage equality advocates still do not feel secure.
In their opinions on the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade last year, Justices Clarence Thomas and Samuel Alito wrote that the high court should reconsider Obergefell v. Hodges, saying it lacks constitutional grounding.
“If the Court was willing to overturn five decades of precedent guaranteeing the right to abortion (as they did with the Dobbs decision last year), it cannot be assumed it will uphold less than a decade of precedence protecting marriage equality,” said Tony Huang, executive director of Equality California.
The possibility inspired Congress to pass the Respect for Marriage Act last year, a law requiring all states to recognize same-sex, interfaith and interracial unions.
But Equality California says this law does not go far enough. If Obergefell were to be overturned, it does not mandate that states issue marriage licenses to same-sex or interracial couples.
“California leads the way in LGBTQ+ protections and cutting-edge pro-equality legislation and our constitution should reflect those values,” said Low.
