Summary
Currently, Article One, Section 7.5 of California’s Constitution states that only a marriage between a man and a woman is valid or recognized in the state. This section was included in the state constitution via California Proposition 8, approved by 52% of voters in 2008. However, it was later invalidated, first by a federal court in 2010 and later by the United States Supreme Court in Obergefell v. Hodges in 2015. However, Section 7.5 remains in the state constitution.
California Proposition 3 was put on this year’s ballot by the state legislature, so voters can choose to replace the current language in Section 7.5 with revised language recognizing the right to marry as a fundamental right. In California, amendments can only become part of the constitution if the electorate approves it, so Prop. 3 is the only way to change this language.
Fiscal Impact
In 2011, The Legislative Analyst’s Office of California said that repealing Proposition 8 would have “little impact” in the long run on state and local governments, although in the short term, increased revenues from sales tax related to wedding ceremonies would have had a net positive fiscal impact. Because Proposition 8 was already struck down in 2010 by a federal appeals court, and same-sex marriages resumed in 2013, there is no fiscal impact expected.
Proponents’ Arguments
Prop. 3 was introduced by California Assemblymember Evan Low (D-Cupertino) and Senator Scott Weiner (D-San Francisco) and has the support of Governor Gavin Newsom. The justification for the bill, according to Sen. Weiner, is twofold. First, it was to “right [the] wrong” of having Article 7.5 in the constitution at all, regardless of its lack of enforceability. Second, it is to ensure that even if Obergefell v. Hodges, which guarantees the right for same-sex couples to be married, were to be overturned, same-sex Californians’ right to marry and have their marriages recognized by the state would remain intact. Among the non-governmental organizations supporting Prop. 3 are the ACLU, Human Rights Campaign, Equality California, the National Center for Lesbian Rights, and Planned Parenthood.
Opponents’ Arguments
Among the nongovernmental organizations that oppose Prop. 3 is the California Family Council (CFC), which also supported Proposition 8 on the basis of a belief that marriage was created by God to be between a man and a woman. The president of CFC, Jonathan Keller, stated, “If you abolish the definition of marriage and say that marriage can mean anything, then marriage actually means nothing. This amendment removes critical protections, which is why we oppose it.”
The Restored Hope Network opposes it on the basis of harm to children and families through a diluted definition of marriage. And the California Republican Assembly writes that Prop. 3 promotes same-sex marriage and pressures those who affirm “biblical” marriage to abandon their beliefs.
Discussion
In 2008, 52% of Californians approved Prop. 8, a ballot initiative that, with one sentence, changed the state constitution to enshrine marriage between one man and one woman as the only valid and recognized marriage in the state. It is one of 30 other states that did so between 1998-2012. So far, only Nevada has repealed that amendment. The Supreme Court case Obergefell v. Hodges invalidated those amendments in 2015, establishing the constitutional right for same-sex people to marry and to have their marriage recognized in all states. However, the 2022 overturning of Roe v. Wade with Dobbs v. Jackson Women’s Health Organization, in which Justice Thomas wrote that precedents dealing with substantive due process (e.g. rights that are not specifically listed in the U.S. Constitution, such as the right to same-sex marriage) should be reconsidered, is bringing a sense of urgency to proponents of same-sex marriage to legislatively guarantee that right state by state.
Even if, as the majority opinion given by the Supreme Court justices asserts, there is little risk of Obergefell being overturned, having voters eliminate language codifying heterosexual marriages as the only valid and state-recognized marriages from state constitutions is an important legal change. It upholds individual freedom, does not impede on the rights of others, and helps remove the government from policing consenting adult sexuality.
Prop. 8 most likely would not pass in California today, with 69% of Americans supporting same-sex marriage, reflecting a remarkable shift in public sentiment and openness to same-sex couples over 16 years and further reason to put Prop. 3 on the ballot. In 2008, voters supported the stance of nongovernmental organizations like the National Organization for Marriage, The Family Research Council, and religious groups The Church of Jesus Christ of Latter Day Saints (LDS), the Orthodox Jewish Congregations of America, and the U.S. Catholic Bishops. Since then, many such organizations have moved away from publicly opposing legalizing same-sex marriage, conceding that it is a lost cause given the 69% of Americans who support it. And some have reversed course. For example, LDS backed the federal Respect for Marriage Act, which legalized same-sex marriage nationally. Republicans in both the California State Assembly and State Senate joined Democrats to unanimously approve putting Prop. 3 on the ballot.
As far back as 1975, Reason Foundation argued that restricting marriage is not something the government should be involved in: “Marriage laws are obviously discriminatory and thereby deny to homosexual couples legal benefits granted to heterosexual marrieds—lower tax rates, immunity from being forced to testify against a spouse.”
In general, laws should be written to facilitate people doing what they choose to do, so long as it is peaceful and doesn’t infringe on the rights of others. Allowing those who want to marry to do so falls within that approach. Arguably, the government should not be in the marriage business at all, letting private individuals make the legal arrangements they prefer when it comes to sharing their lives and property, and without the government granting special privileges based on relationship status. One analyst suggested, “Make it a private contract between two individuals. If they wanted to contract for a traditional breadwinner/homemaker setup, with specified rules for property and alimony in the event of divorce, they could do so. Less traditional couples could keep their assets separate and agree to share specified expenses…Marriage contracts could be as individually tailored as other contracts are in our diverse capitalist world.”
While government regulation of marriage remains, however, Prop. 3 allows a wider subset of the population the freedom to participate in an institution that carries personal and societal significance.