If California state assemblyman Evan Low has his way, Californians will be asked to cast a vote to make same-sex marriage legal during next year’s November general election.
That might seem odd, given that same-sex marriage has been legal in the state since 2013. But even though the courts ruled that the state’s ban on same-sex marriage was unconstitutional, California’s state constitution still contains the ban that was enacted by voters in the 2008 Proposition 8 referendum.
“I remember the painful day when the rights of same sex couples to marry in CA were eliminated in 2008,” Low tweeted after introducing his repeal bill last week. “That language is still in our state constitution today.”
LGBTQ2S+ activists are concerned that this “zombie” provision of the state constitution could snap back into force if the U.S. Supreme Court ever reverses its rulings that legalized same-sex marriage. While that was once a fringe concern, the 6-3 conservative majority on the Court has seen fit to strike down decades of legal precedent to enact its extremist preferences.
Last year’s Dobbs v. Jackson ruling, which reversed earlier court precedents establishing the right to legal abortion, crystalized these fears—especially the opinion written by Justice Clarence Thomas, which directly stated that he believed the landmark rulings legalizing same-sex marriage (Obergefell v. Hodges) and decriminalizing sodomy (Lawrence v. Texas) were wrongly decided.
While no other justices joined Thomas’s separate opinion—though Justice Samuel Alito has also opined that Obergefell was wrongly decided—the threat has spooked LGBTQ2S+ organizations across the U.S. Some fear that the legal campaign to get the courts to reverse marriage equality is already underway, with a federal court in Oklahoma recently taking away a lesbian mother’s parental rights and handing them to the child’s sperm donor.
“We’re launching this ballot initiative really early on because we know we can’t take any precedent from the Supreme Court for granted,” Jorge Reyes Salinas, communications director at Equality California, the state’s largest LGBTQ2S+ rights advocacy organization told Xtra.
This is just the beginning of a nearly two-year process to amend the state constitution. The question must first receive a two-thirds vote in favour by both houses of the legislature by June 2024. Given that Democrats hold overwhelming supermajorities in both houses of California’s legislature, it’s expected to get on the ballot easily. But then it must win majority approval in the November general election.
Although polls suggest that a marriage equality referendum would pass easily in California, it’s still unclear how much work and resources the referendum will demand of supporters. Referendum campaigns are notoriously contentious and expensive in California. Citizens are routinely asked to decide on a dozen or more referendum questions during biennial elections, and campaigns must compete for attention in an enormous state that’s home to more people than all of Canada.
One referendum campaign in 2022 saw both sides spend more than USD $350 million.
Although it’s still early days, a wide coalition of LGBTQ2S+ organizations has already thrown their support behind the effort, as has much of the state’s Democratic Party establishment. Governor Gavin Newsom endorsed the repeal as soon as it was introduced.
But some in the community are skeptical of the need to repeal these zombie laws.
“Any decision about going back to the ballot must take into account how much a well-run campaign will cost, how it would interact with other races and questions on the ballot and whether there are more urgent priorities for activism and resources at this time of challenge to our democracy,” Evan Wolfson, the founder of Freedom to Marry, one of the leading organizations pushing for the right to same-sex marriage in the U.S., told Xtra.
But Reyes Salinas says he’s not worried that the ballot initiative will distract from the community’s other concerns.
“It should not be a concern that we are spending all of our attention doing what’s right in repealing Prop 8,” he says. “We’re still continuing to make sure we fight for reproductive freedom and trans healthcare and protecting the families of trans youth.”
Still, Reyes Salinas refused to speculate on how much a referendum campaign will end up costing and if it will divert resources from other causes.
“The coalition of LGBTQ2S+ legal rights organizations are already having conversations about the campaign. They have significant experience running these campaigns. We’re confident we will have a well-run and resourced campaign,” he says.
Reyes Salinas says the referendum is also an opportunity to make the broader case for LGBTQ2S+ rights both in and out of state.
“This is a tool to continue educating the public about the LGBTQ2S+ experience. We now have the opportunity to make the right choice. We know there are 76 percent of Californians who are in favour of equality,” he says.
How did we get here?
California’s constitutional ban on same-sex marriage was enacted by voters in the notorious Proposition 8 referendum in 2008. The ban, which passed on a narrow 52-48 margin, overturned a California Supreme Court decision earlier that year that legalized same-sex marriage, and was part of a trend that saw same-sex marriage ban referendums held across dozens of U.S. states between 1998 and 2012.
Thirty-four U.S. states and the territories of Puerto Rico and the U.S. Virgin Islands still have zombie provisions in their state constitutions or in their statutes that bar same-sex marriage. All of them could snap back into effect if the Supreme Court overturns its marriage precedents, and activists want all of these zombie laws repealed.
In 2020, Nevada became the first, and so far only, state to repeal a constitutional ban on same-sex marriage when it passed a referendum by a 62-38 margin. Nevada’s constitution now affirms that marriage is open “to couples regardless of gender.”
But despite overwhelming public support for same-sex marriage—the latest Gallup poll showed more than 70 percent of American are in favour—the majority of Republican politicians remain staunchly opposed. That makes legislative efforts to repeal these bans a non-starter in states where Republicans control any part of the legislative process, and Republicans control the legislatures of most of the states with zombie same-sex marriage bans.
Only four states with these zombie bans have Democratic-controlled legislatures: California, Oregon, Colorado and Michigan. State legislators have discussed beginning marriage ban repeals in all of these states, but none has advanced a bill yet.
Democrats also control the legislature of the U.S. Virgin Islands, where a zombie ban exists in the state statutes only. No bill has yet been submitted to repeal it, though last month, the legislature passed a comprehensive bill to protect LGBTQ2S+ people from discrimination.
An effort to repeal the zombie state constitutional ban in Virginia, where Democrats control the state senate, but not the state house of representatives, ran aground last week when Republican house leadership killed the repeal bill in committee. The process could be restarted next year if Democrats win state legislative elections in November, but that would put a possible referendum off until 2026 at the earliest.
Democrats have also tried introducing bills to repeal bans in other Republican-controlled states, including South Dakota, Arizona, Texas, Indiana and Alaska, only to see them voted down or stalled in committees.
In eleven other states with zombie marriage bans, citizens could force a repeal referendum by collecting signatures: Ohio, Florida, Mississippi, Missouri, Arkansas, Oklahoma, Nebraska, South Dakota, North Dakota, Montana and Arizona. But the initiative process is difficult and costly.
Last year, Congress passed the Respect for Marriage Act, a law that will require all states to recognize legally performed same-sex marriages from other jurisdictions, in the event that the Supreme Court reverses its rulings on the right to marriage. However, the law does not require any state to legalize same-sex marriage.
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