A Thank You to the two Unsung Heroes of Marriage Equality: Sylvester Davis and Andrea Perez

California's Proposition 8 is Repealed - Marriage Equality Becomes Part of our Constitution

The passage of California’s Proposition 8 in November 2008 hurt more than words can possibly describe.¹ Only 6 months earlier, the California Supreme Court, in a historic decision advancing gay rights, had held that the state’s same-sex marriage bans were unconstitutional under the state constitution.² Over 18,000 gay couples legally married during that time period.³

Then, it was all taken away in a single night through a narrowly passed ballot measure.⁴ To have the right taken away as we celebrated the historic achievement of electing our first black President on the same night seemed a cruel twist of fate.

Of course, Proposition 8 turned out to be a Pyrrhic victory.

A federal district court struck down Proposition 8 in 2010.⁵ Although the United States Supreme Court might have overturned the decision, then Governor Jerry Brown and then Attorney General Kamala Harris refused to appeal the decision, ending the case and ensuring marriage equality in California.⁶

When the decision striking down Proposition 8 was made final, viewers watched on live television as confused Los Angeles County Registrar employees denied a gay couple their marriage license only to see Kamala Harris personally call the Los Angeles County Registrar and order him to issue the marriage license (which he immediately did).⁷

Just two years later, with the benefit of watching same-sex marriage become legal across wide swaths of the country and witnessing the sky not fall, the United States Supreme Court struck down all remaining same-sex marriage bans.⁸

Although Proposition 8 was unconstitutional, it remained on the books as a dead letter law, a reminder of the second class citizenship of gay, lesbian, and bisexual Californians enshrined into our Constitution.⁹

In the 2024 election, Californians finally had the opportunity to repeal Proposition 8 with Proposition 3. With all votes counted, Proposition 3 has passed 62.64%-37.36%, with a majority of counties voting in favor.¹⁰ Proposition 8 is now gone for good, relegated to the dustbin of history.

Although the California Constitution already protects the fundamental right to marry, it did not do so explicitly in the text.¹¹ Proposition 3 has changed that, now making it explicit.¹²

Proposition 3 is not the first time that voters in California have corrected a major mistake. For example, in 1964, nearly 2/3rds of Californians voted for Proposition 14, which enshrined the right to engage in racial housing discrimination into the Constitution.¹³ In 1967, the United States Supreme Court held that it violated the Fourteenth Amendment Equal Protection Clause.¹⁴

However, Proposition 14 remained on the books as dead letter law, serving as a reminder of racial discrimination and oppression.

In 1974, Californians voted overwhelmingly to repeal Proposition 14.¹⁵ In many ways, it was cathartic. Where the public had erred so grievously only ten years earlier, the public had evolved to recognize its mistake and correct what it had done.

There was another practical reason for Proposition 3. After the Dobbs decision taking away abortion rights, many have been concerned that the Supreme Court could reverse its marriage equality decisions and Proposition 8 could be revived. The extremist right wing ideologues on the United States Supreme Court, in the words of the late Harvey Milk, “have a shopping list”.

Feeling relieved as I do that Proposition 8 is now gone, there are two individuals who I greatly credit for Proposition 3, Los Angeles residents Sylvester Davis and Andrea Perez.

Their story - Proposition 3’s story - began some 84 years ago.

In 1941, Davis and Perez met on a Lockheed assembly line in Glendale, making parts for the American war effort in World War II. Davis and Perez were not of the same race. Davis was African American. Perez was Mexican American (considered white by law because of the Treaty of Guadalupe Hidalgo).¹⁶

Davis and Perez began seeing each other and fell madly in love. Their families, who disliked interracial relationships, were not happy about it. Perez’s father forbid the relationship and reportedly stopped talking to his daughter after learning that she would not stop seeing Davis.

Yet despite the best efforts of both their families to keep them away from each other, Davis and Perez persisted.

Like many young couples, they planned to get married. And as fairly devout Catholics, both felt the obligation to do so as living together unmarried would constitute a sin.

But their marriage plans faced an obstacle.

California law banned whites from marrying non-whites. Their love and commitment for one another was irrelevant. The law demanded they be strangers to one another.

When they tried to get married anyway in 1947, the Los Angeles County Registrar, citing the law, refused to issue them a marriage license.

Perhaps they could have decided to cohabitate together. But that would mean violating their shared Catholic faith (living in sin) and living without the full protections that marriage provide. They could have eloped to another state to get married as some interracial couples did at the time. But that had uncertainty of whether the government would recognize their marriage.¹⁷

It strikes me that it would have been easy for them to simply give up and end their relationship.

They could have decided that their relationship would never be accepted by society. Their families didn’t want them to get married and now the government told them they couldn’t either.

However, their love for one another was too strong.

Davis and Perez turned to the courts. Perez had once worked as a babysitter for the family of prominent Los Angeles attorney, Daniel G. Marshall. A fellow Catholic and a strident liberal who would later suffer from Blacklisting, he agreed to take the case.

At the time, their case was an extreme longshot. It was not one of first impression.

Many inter-racial couples had challenged these anti-interracial marriage laws. But every American court ruled against these couples. The state and federal courts unanimously held the Constitution allowed inter-racial marriage bans.¹⁸ Laws that required individuals to only marry others who belonged to their same race remained. American courts even concluded these laws were desirable.

Technically, the United States Supreme Court had never ruled on the issue.¹⁹ But they had long upheld the constitutionality of laws making it illegal for adults of different races to have consensual sex with one another.²⁰ It would not be until 1964 that the Supreme Court would overturn this doctrine and even then, expressed reluctance over whether interracial marriage bans were unconstitutional.²¹

In 1948, Plessy v. Ferguson, which held that “separate but equal” was acceptable for segregating people of different races under the Fourteenth Amendment, was still the law of the land.

Unlike 2008, where literally hundreds of organizations filed amicus briefs with the California Supreme Court to argue in favor of same-sex marriage rights, no civil rights organization backed Davis and Perez. Their attorney, Marshall, went it alone.

It’s perhaps unsurprising. In that day and age, inter-racial marriage was considered taboo. In 1949, when the Broadway musical, South Pacific, explored the topic of inter-racial relationships, it was considered groundbreaking and risky.²²

Davis and Perez should have lost their case.

Yet, on October 1, 1948, the California Supreme Court, in a bitterly divided 4-3 decision, held the anti-interracial marriage law was unconstitutional.²³ The marriage license was issued.²⁴

Because of the Court’s unprecedented decision, Davis and Perez got to proverbially “live happily ever after”.

The Court based its historic ruling on three different grounds.

• The Court held that the law was too vague to be enforced.²⁵

• The Court held that the law violated equal protection as unconstitutional racial discrimination.²⁶ Ironically, this was because the law only restricted whites from marrying those of other races but did not similarly restrict non-whites of different races.²⁷

• The Court held that there was a fundamental constitutional right to marry contained within the California Constitution.²⁸ And the Court held that the law violated the fundamental right to marry.²⁹

Although it seems strange by today’s standards, the Court was then sharply divided.³⁰ While their constitutional interpretations are today taken for granted, they only commanded the votes of three Justices on the seven Justice court.

The swing fourth vote to strike down the law came from Justice Douglas Edmonds, who concurred on the ground that the law violated the First Amendment.³¹

The First Amendment’s guarantee of religious liberty had only been recently made applicable to the states.³² Justice Edmonds reasoned the restrictions on inter-racial marriage restricted religious liberty and could only be justified by important government interests for the purpose of preserving public health and safety.³³ He concluded that the state had not met its burden.³⁴

Justice Edmonds can hardly be faulted for taking this position. First, it was the original main legal argument of Davis and Perez.³⁵ Second, given the precedents that existed at the time, the decision could have been easily reversed.

The First Amendment argument presented a novel way of reaching a conclusion that allowed Davis and Perez to get married that might withstand appeal.

The angry and caustic dissent attacked the majority of the Court for implementing its social views through the judicial system.³⁶ In the lengthy opinion, the dissent went on ad nauseum about the need to preserve racial purity.³⁷

Not content to simply recite past precedent, the dissent engaged in outright racist commentary about the need for such laws.³⁸ The dissent even cited to South Africa’s newly implemented Apartheid laws as a model for having laws banning inter-racial marriage.³⁹

As an aside, just one month later on November 1, 1948, in another bitterly divided 4-3 decision, the California Supreme Court held that it would be illegal for a Richmond, California supermarket to hire specified percentages of black employees.⁴⁰ There, the Court upheld an injunction against an activist group attempting to force discriminatory hiring and affirmed a conviction for contempt.⁴¹

What’s interesting is that all three dissenters in Perez v. Sharp comprised the majority of this case. They arrived at this conclusion even though in 1948, California had not yet enacted its employment race non-discrimination laws.⁴²

The three dissenters who had one month earlier extolled the virtues of racial purity and held up South Africa’s Apartheid as a role model for California to follow, suddenly discovered the concept of racial equality.⁴³ When the concept of whites being fired or not hired on account of race arose, they suddenly discovered their dislike of racial discrimination.⁴⁴

Their distaste for racism didn’t last too long. Just four years later with the same Justices on the bench, in another bitterly divided 4-3 opinion, the California Supreme Court struck down California’s law forbidding Japanese residents from owning private property.⁴⁵ The same three Justices who angrily dissented in Perez v. Sharp angrily dissented again.⁴⁶

The dissent accused the majority of adhering to their “personal social views”.⁴⁷ They argued that excluding Japanese residents from owning land in California was necessary because their loyalty to the United States was highly questionable.⁴⁸ Perhaps an unsurprising conclusion from Justices who believed in the need to preserve racial purity of whites.

It is comforting to read the brilliant and fiery concurring opinion authored by Justice Jesse Carter in Perez v. Sharp, which criticized the racism of the dissenting Justices.

Justice Carter called out the law as racist and anti-American.⁴⁹ He criticized the Los Angeles County’s brief in defense of the law and the dissent’s arguments for effectively quoting passages from Mein Kampf.⁵⁰ As he concluded, racist laws contradicted the U.S.’s foundational principles even if courts and lawmakers had not always observed those principles.⁵¹

I am linking the case, Perez v. Sharp, here and I encourage all to read it.

Davis and Perez never became famous civil rights figures. Most instead remember Mildred Jeter and Richard Loving, the interracial couple whose marriage resulted in a jail sentence, expulsion from the Commonwealth of Virginia, and ultimately a 1967 United States Supreme Court ruling in Loving v. Virginia, legalizing inter-racial marriage across the country.⁵²

However, while Davis and Perez may have remained largely unknown to the general public, their legal legacy remained.

In the Loving v. Virginia decision, Chief Justice Earl Warren referenced Perez v. Sharp.⁵³ He had been the Governor of California in 1948. So far as I can research, he declined to appeal the adverse ruling against his state’s law.

Sixty years later, Perez v. Sharp became critical once more, when the California struck down our state’s same-sex marriage ban.⁵⁴ There, in In Re Marriage Cases, the Court held that the state’s constitutional right to marry could not be denied to gay couples on account of their sexual orientation, relying heavily upon the precedent in Perez.⁵⁵

Similarly to Perez, all but one state court and all federal courts had previously held that same-sex marriage bans were constitutional.⁵⁶ And like Perez, the Court’s bitterly divided 4-3 opinion ultimately became the law of the United States with a Californian Supreme Court Justice writing the majority opinion.⁵⁷

Proposition 3 has now codified In re Marriage Cases and Perez v. Sharp into the California Constitution.

Admittedly, I did not like the way in which Proposition 3 was written.

• It lacked a religious protection exemption, making it clear that no religious congregation would be forced to solemnize, perform, or recognize a marriage it did not want.

• It did not contain a non-discrimination provision, providing that race and sexual orientation could not be used to deny a marriage license.

• It did not provide any kind of marriage definition, making it clear that the right to marry applies only to two consenting adults.

In this way, I empathized with writer

Lisa Selin Davis

, a liberal who opposed New York’s Proposition 1, which amended the New York Constitution to include an Equal Rights Amendment. It was also advertised as an amendment to protect abortion rights.

Davis, who supports sex and sexual orientation equality as well as the right to abortion, raised concerns in If Only There Were a "Not Yet" Button for Prop1, about the wide-ranging impact of the law based upon how it was written. I don’t know enough about New York law to opine on New York’s Proposition 1 and whether Davis is correct to fear the broad impact of the new law.

What I can say though is that it’s extremely painful to oppose a law that one otherwise would strongly support because it contains some fatal flaws that are not addressed. This is especially true on the issue of efforts to expand and protect individual rights, especially marriage equality.

However, I voted for Proposition 3. My objections to its text were political ones, not legal ones. As legal matters:

• A religious exemption is unneeded to protect religious congregations from having to perform, solemnize, or recognize marriages they do not agree with.⁵⁸ Proposition 3 does not change the pre-existing religious protections in the California Constitution.⁵⁹ Moreover, even if it purported to, Proposition 3 cannot override the protections of the First Amendment.⁶⁰

• A fundamental right cannot be limited on the basis of categories like race and sexual orientation.⁶¹

• The fundamental right to marry, as interpreted by the California Supreme Court, has always been limited to marriages of two consenting adults.⁶² It has always excluded things like polygamy, bigamy, incestuous marriages, child marriages, and forced marriages.⁶³

Californians have codified California Supreme Court decisions before. For example, in 1969, the California Supreme Court held that the right to privacy inferred from the California Constitution protected a woman’s right to obtain an abortion and use birth control.⁶⁴ In 1972, voters responded to this decision by incorporating the implied right to privacy directly into the Constitution.⁶⁵

My political issue with Proposition 3 is that it’s vitally important to come to this debate with respect for people who do not support marriage equality and people who do but fear the curbing of freedom of religious institutions.

It might seem unnecessary for passage. However, beyond winning a simple election, those who want true sexual orientation equality want to change minds and have a society that is ultimately accepting of LGBT Americans. Engaging in that respect does far more to change minds in favor of LGBT Americans and win acceptance.

Most people are not constitutional lawyers and don’t read case law. Having clarity in express provisions that reassure voters that religious institutions will maintain their freedom and that marriage will remain between two consenting adults is rather important.

Had that been done, instead of a 62.64%-37.36% victory with 24 counties voting against it, Proposition 3 would have won with over 80% of the vote and all 58 counties voting in favor.

That said, a victory is still a victory. 16 years ago, even in my wildest hopeful optimism before the 2008 election, I could never have imagined a victory like this. Nor in my abject despair after Proposition 8’s passage, could I have imagined it either.

After 2024’s soul crushing election, it is one election result I am taking solace in.

Andrea Perez died in 2000. Sylvester Davis died in 2018. So, I unfortunately cannot personally thank them. But I will remain forever grateful to them for their brave act of defiance that ultimately paved the way for the freedom that so many millions of Americans enjoy today and what is now permanently in the California Constitution.

Undated Photos of Sylvester Davis and Andrea Perez

1. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.