California has long been lauded — and criticized — for its progressivism, but when it comes to marriage equality, the state has a rather complicated history. If passed this November, Proposition 3 would decisively end the decades-long battle for recognizing same-sex marriage in California.
Despite being federally legal since the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, California’s Constitution still bars marriages between same-sex couples. Prop. 3 would formally repeal this so-called zombie law and further articulate in the Constitution that “the right to marry is a fundamental right.”
While the measure will not necessarily change anything for LGBTQ+ Californians, it provides strong legal protections for same-sex couples, which Justice Clarence Thomas said the Supreme Court “should reconsider.”
The constitutional change would also demonstrate California’s broader support for the LGBTQ+ community, which in recent years has faced a conservative backlash seeking anti-transgender legislation, book bans and forced-outing policies in schools.
Shannon Minter, the legal director of the National Center for Lesbian Rights and a lawyer who argued in court against California’s most recent campaigns to restrict marriage rights, Proposition 22 and Proposition 8, believes that 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’s not equal under the law, then you don’t have a democracy,” Minter said.
Californians have voted twice to reject civil rights protections for LGBTQ+ people over the last 20-plus years, but even decades before those debates, there was a fight over allowing gay and lesbian teachers in California schools — a record that, taken altogether, contradicts the state’s progressive self-image.
In 1978, Republican state lawmaker John Briggs championed Proposition 6 — commonly known as the Briggs Initiative — which would have required schools to fire teachers if a school board determined that they engaged in “homosexual activity” or “homosexual conduct.” LGBTQ+ Californians mobilized a massive grassroots campaign, aided in part by queer residents revealing their sexual orientation to loved ones and neighbors in huge numbers, demonstrating their widespread existence in public life.
The movement was ultimately about showing the humanity of LGBTQ+ people, and it was successful: Prop. 6 was defeated at the ballot box. But the battle over marriage equality was just beginning.
Californians first rejected the notion of same-sex marriage in 2000 when voters approved Prop. 22, which legally defined marriage as between a man and woman. After years of battles in the legislature and the courts, the California Supreme Court struck it down in 2008, permitting marriages of same-sex couples.
State Sen. John Laird, a Santa Cruz Democrat and co-sponsor of the bill that became Prop. 3, still remembers the moment he found out that he could finally marry his partner of 15 years.
State Sen. John Laird, a Democrat from Santa Cruz, speaks on a bill before the legislature at the Capitol in Sacramento, on July 10, 2023. Photo by Rich Pedroncelli, AP Photo
“I was standing on the back of the Assembly floor, and the speaker’s press secretary gets weepy, and he can’t even tell me,” Laird recalled in a recent interview. “He passes me the phone, and the phone says that the Supreme Court has ruled in favor of marriage equality. So I get out my phone, and I catch my spouse at work, and I propose.”
The couple was married that September. But a few 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.
“(Prop. 8) literally amended … the equal protection clause of the California Constitution to create an exception that permitted the state to discriminate against same-sex couples in marriage,” Minter told me.
Minter and others fought the measure in court for years before a federal court ruled that the measure violated the U.S. Constitution’s equal protection clause in 2013. It has remained dormant in the state’s governing document ever since.
Compared with previous efforts for voters to decide on marriage equality, there has been little campaigning against Prop. 3. Many conservatives have been reluctant to push against marriage equality given its popularity among voters, fearful of triggering the sort of backlash that’s empowered Democrats since the Dobbs v. Jackson Women’s Health Organization decision overturned Roe.
Now it is widely expected that Prop. 3 will pass: Public support for marriage rights has finally caught up to legal arguments — and that public support goes a long way.
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A year ago, the Human Rights Campaign declared a national state of emergency for LGBTQ+ Americans. As someone whose mere presence has been a political statement throughout his time in government, Laird told me it’s essential to recognize the change in public opinion.
A Republican legislator and his wife once joined Laird and his partner on a work trip, and afterward the legislator told Laird that the experience helped shift his perspective on same-sex marriage.
“He said, ‘You know, you guys are really nice people and special, and we really enjoyed spending time with you, and I’m going to have to rethink this marriage thing,’” Laird told me. “We got married not long after that, and he gave us a wedding gift.”
Something as simple as spending time with LGBTQ+ people has the power to normalize their existence for people who have not yet encountered them, a reality that holds true for any underrepresented community. Today so many more LGBTQ+ people are able to safely come out and be open with their identities, and by extension, more people realize they have queer loved ones and friends — people whose civil rights they do not want to deny.
After decades of leaving LGBTQ+ rights in a legal tug-of-war, California voters have the opportunity to tell their neighbors, friends, colleagues and children that they unequivocally deserve the same civil rights as everyone else.