Key proposition aims to protect same sex marriage

Almost 16 years ago, California passed a short constitutional amendment via a ballot proposition that included no reason for its adoption. This was pure emotionalism.

“Only marriage between a man and a woman is valid or recognized in California,” the amendment, known in the 2008 election as Proposition 8, said very simply.

This was the reaction to an action four years earlier by then-San Francisco Mayor Gavin Newsom to have the city/county government he headed start issuing marriage licenses to same-sex couples.

Newsom’s move was a first. It prompted an emotional response by opponents terrified that the fabric of America would be destroyed by letting gay people marry one another and begin to enjoy the tax, insurance and other benefits of legal unions.

Prop. 8 did not last long in the courts. Yes, it was ratified by the state Supreme Court soon after it passed on a 52-48 percent vote, the state justices ruling it created only a small exception in the California Constitution’s equal rights clause.

This ruling was quickly overturned by a federal judge in San Francisco, with the U.S. Supreme Court eventually refusing to take up the case, thus allowing gay marriages, but also letting the language forbidding them to remain in the state Constitution.

The ruling okaying same-sex unions said Prop. 8’s ban violated both the equal protection and due process provisions of the U.S. Constitution. That decision and its reasoning have stood for more than 14 years.

But forbiddance of those unions remains enshrined in the state Constitution, and supporters now fear that a Republican takeover of both houses of Congress this fall, combined with election of Donald Trump as President, could resuscitate it and lead to ending gay unions.

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They know the emotions behind Prop. 8 still exist, as one recent statement from the California Family Council shows. It claimed the new proposition might “dismantle the traditional family structure.”

All this makes the move to strike Prop. 8’s currently moribund language potentially the most important measure on a ballot that will also feature major initiatives on crime, housing, health and taxation.

It’s why both houses of the state Legislature voted by margins topping two-thirds last spring to place an antidote on the November ballot. No one is sure today whether their measure striking Prop. 8’s language from the state’s chief governing document could withstand a potential new federal law with those or similar words at a national level.

More than 200,000 Californians now live in same-sex marriages, so reactivating the old Prop. 8 just might lead to the very sort of upheaval the measure’s supporters originally feared from gay marriage.

Insurance policies could be cancelled in an era when new ones can be hard to get. Same-sex spouses could lose health coverage under their partners’ policies. Longstanding adoptions could be threatened. And much more.

How serious is any threat to same-sex unions? One clue came in the concurring opinion issued by U.S. Supreme Court Justice Clarence Thomas when he voted to end the Roe v. Wade protection of abortion rights.

Thomas opined the court should also reconsider rulings on things like same-sex marriage and contraception, a formerly very private subject that’s become a major issue in Congress.

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California and other states have since passed ballot measures to enshrine abortion rights in their own, more local constitutions, which are permitted to grant more rights, but never less, than the U.S. Constitution.

That principle, for just one example, allows California’s tough fair housing laws to persist in the face of periodic opposition from real estate interests.

Newsom, now the governor, is already campaigning for the measure to strike the old Proposition 8, which does not yet bear a number. “Here we are in 2024,” he observed the other day, “and we’re…experiencing a rights regression.”

All this explains why, even though there is no explicit threat today to same-sex marriage (other than the musings of Thomas), top political figures like Newsom and former state Senate President Toni Atkins (who has a same-sex marriage), urgently seek elimination of Prop. 8’s language.

Doing that could prevent future confusion and disruption in thousands of lives.

Email Thomas Elias at tdelias@aol.com.

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