Repealing Proposition 8 (2008)

Proposed Constitutional Text to Protect Marriage Equality in California

On Valentine’s Day 2023,¹ California legislators announced they planned a constitutional amendment to repeal Proposition 8 (2008), which prohibits marriage equality in California.²

This is not mere virtue signaling by the California State Legislature or a political ploy designed to boost voter turnout beneficial to the Democratic Party but an actually necessary step, given current law and in light of today’s current United States Supreme Court.³

Currently, the California Constitution explicitly bans marriage equality.⁴ In 2008, the California Supreme Court had held that marriage equality was guaranteed under the California Constitution.⁵ This decision invalidated both a previous statute passed by the State Legislature in 1978 and a voter-approved initiative in 2000, Proposition 22, that prohibited same-sex marriage.⁶ However, voters narrowly passed a constitutional amendment that year, Proposition 8, that amended California’s Constitution to explicitly prohibit same-sex marriages.⁷

However, the California Constitution’s prohibition against marriage equality is a currently unenforceable law as it was held to be unconstitutional under the Fourteenth Amendment of the United States Constitution.⁸ Because California refused to appeal the federal court decision holding Proposition 8 unconstitutional, legal same-sex marriages resumed in California in 2013.⁹

Just two years later, the United States Supreme Court held that same-sex marriage bans violated both fundamental liberty interests and equal protection under the Fourteenth Amendment.¹⁰ Thus, Proposition 8 has remained a dead letter law and marriage in California has remained open to all regardless of sexual orientation.¹¹

Last June, when the United States Supreme Court reversed almost a half century of precedent to take away a woman’s constitutional right to abortion, Justice Clarence Thomas suggested several other prior constitutional precedents that should be overturned as well, including the decision guaranteeing marriage equality.¹² Given the current United States Supreme Court majority’s reckless disregard of long-settled legal precedents that result in things they personally disfavor, marriage equality is at risk.¹³

Unlike abortion law, however, where Californians had an independent state constitutional right protecting the right to choose and statutory provisions authorizing abortion, same-sex marriage would otherwise be prohibited once more in California should the United States Supreme Court reverse its own precedents.¹⁴

Thus, it is imperative that we repeal Proposition 8 at the ballot box in 2024.

However, an important question arises. Is it enough to simply reverse Proposition 8 and repeal the constitutional provision (Article I, Section 7.5) from the California Constitution? Or should more explicit guidance be given?

A mere repeal would theoretically put California back to where it was when the California Supreme Court held the California Constitution guaranteed a right for same-sex couples to marry. However, more fixed guidance would offer additional protection in the future. It would remove the potential of the California Constitution being reinterpreted to take away the right. It would also remove other substantive legal questions related to marriage equality in the state.¹⁵

I thus propose the following amendment to the California Constitution:

Section 1

This Act shall be known, and may be cited as, the Marriage Equality and Religious Freedom Act.

Section 2

Section 7.5 of Article I of the California Constitution is hereby repealed.

Section 3

California Family Code Section 308.5, as enacted by the voters on March 8, 2000, is hereby repealed.¹⁶

Section 4

Article I, Section 1.2 is added to the California Constitution, to read:

(a)   The inalienable right to privacy under Section 1 of this Article includes, but is not limited to, the fundamental right of an adult to marry another consenting individual adult of their choice.¹⁷

(b)   The state shall not deny or interfere with an individual’s fundamental right to marry on account of sex, race, religion, gender, sexual orientation, gender identity, creed, color, or national or ethnic origin.¹⁸

(c)   All legally valid marriages under California law must be treated equally under the law.¹⁹

(d)   Religious organizations and members of the clergy have the right to refuse to solemnize a marriage, and no person has the right to make any claim against a religious organization or member of the clergy for such a refusal.²⁰ This provision does not abrogate any rights guaranteed by or responsibilities under the Unruh Civil Rights Act.²¹

(e)   For the purposes of this section, “State” shall include, but not necessarily be limited to, the State itself, including all branches of state government, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the State.²²

(f)    This section is intended to further the constitutional right to privacy guaranteed by Section 1, and the constitutional rights to liberty and to not be denied equal protection guaranteed by Section 7. Nothing herein narrows or limits the rights to privacy, liberty, or equal protection.²³

(g)   This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.²⁴

Section 5²⁵

A. The provisions of this Act are severable. If any portion, section, subdivision, paragraph, clause, sentence, phrase, word, or application of this Act is for any reason held to be invalid by a decision of any court of competent jurisdiction, that decision shall not affect the validity of the remaining portions of this Act. The People of the State of California hereby declare that they would have adopted this Act and each
and every portion, section, subdivision, paragraph, clause, sentence, phrase, word, and application not declared invalid or unconstitutional without regard to whether any portion of this Act or application thereof would be subsequently declared invalid.

B. If this Act is approved by the voters of the State of California and thereafter subjected to a legal challenge alleging a violation of state or federal law, and both the Governor and Attorney General refuse to defend this Act, then the following actions shall be taken:

(1) Notwithstanding anything to the contrary contained in Chapter 6 of Part 2 of Division 3 of Title 2 of the Government Code or any other law, the Attorney General shall appoint independent counsel to faithfully and vigorously defend this Act on behalf of the State of California.

(2) Before appointing or thereafter substituting independent counsel, the Attorney General shall exercise due diligence in determining the qualifications of independent counsel and shall obtain written affirmation from independent counsel that independent counsel will faithfully and vigorously defend this Act. The written affirmation shall be made publicly available upon request.

(3) A continuous appropriation is hereby made from the General Fund to the Controller, without regard to fiscal years, in an amount necessary to cover the costs of retaining independent counsel to faithfully and vigorously defend this Act on behalf of the State of California.

(4) Nothing in this section shall prohibit the proponents of this Act, or a bona fide taxpayers association, from intervening to defend this Act.

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.

2. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202320240ACA5

3. I was previously very critical of the strategy behind Proposition 1 (2022) though I voted in favor of the constitutional amendment and fully supported it once placed on the ballot. While the United States Supreme Court’s action to overturn Roe v. Wade was as horrifying as it was wrong, it did not actually change any laws in California, where state courts did not follow Roe v. Wade or Planned Parenthood v. Casey.