Ericka Cruz Guevarra: …And legal here in California for eleven years.
Olivia Allen-Price: So you might be surprised to know that the California Constitution still says same-sex marriage is banned.
[Wedding March slows down and stops]
Olivia Allen-Price: I’m Olivia Allen-Price … Host of Bay Curious.
Ericka Cruz Guevarra: And I’m Ericka Cruz Guevarra, Host of The Bay. And you’re listening to Prop Fest – A breakdown of ALL the statewide propositions on your ballot this year.
Olivia Allen-Price: Spooky season is just around the corner, and as luck would have it, today we’re going to talk about zombies. Specifically the “zombie law” that bans same-sex marriage in California…
Ericka Cruz Guevarra: It’s dead, but it could resurrect!
Olivia Allen-Price: Californians will vote on Prop 3 to decide if we should take that same-sex marriage ban out of the state constitution and replace it with something that affirms marriage is for everyone.
Ericka Cruz Guavarra: And if I remember correctly, California’s history on same-sex marriage is pretty complicated.
Olivia Allen-Price: Super complicated. Today, we’re going back on the twisty, turny road of same-sex marriage legalization in this state. Because it helps explain why that zombie law is there in the first place. Then we’ll break down what exactly is up for consideration with Prop 3
Ericka Cruz Guavarra: That’s coming up on Prop Fest, a collaboration between The Bay and Bay. Curious. Stay with us.
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Olivia Allen-Price: Today we’re talking about Proposition 3. Here’s how it will read on your ballot…
Voiceover: Prop 3 is a constitutional right to marriage proposed by the state legislature. It amends the California Constitution to recognize the fundamental right to marry, regardless of sex or race. It also removes language in the California Constitution stating that marriage is only between a man and a woman.
Olivia Allen-Price: Essentially it overwrites a ban on same-sex marriage that’s currently in California’s constitution. Because same-sex marriage is legal federally, that ban is unenforceable or a zombie law. So let’s start with a history lesson on how exactly we got here with KQED’s Scott Shafer, who is the co-host of Political Breakdown, a daily podcast about California politics. Hey, Scott.
Scott Shafer: Hey, Olivia.
Olivia Allen-Price: So walk us back. When did California voters first weigh in on the issue of same-sex marriage?
Scott Shafer: You’d have to go back to around the year 2000. That was when some states began issuing civil unions to same-sex couples. And it was kind of ‘marriage lite’. It wasn’t all the rights, legal rights of marriage that now gay couples and lesbian couples enjoy. But it was a recognition that these relationships were important and that they should be afforded some rights. For example, the right to visit your partner in the hospital, which was not a given in a lot of states. And so states like Vermont and Hawaii and Massachusetts began talking about rights for same-sex couples. And that really concerned a lot of religious conservatives.
And so in the year 2000, a state senator from Southern California named Pete Knight got a ballot measure on the November ballot, Proposition 22, which changed the family code in the state of California, and said that marriage was only between a man and a woman. That passed pretty easily with about 61% of the vote. And that’s where it stayed until Gavin Newsom got elected mayor in San Francisco in the year 2003. A few weeks after becoming mayor in San Francisco…
Gov. Gavin Newsom (archival tape): Today, San Francisco took the step to make the case that we believe in the words in the California Constitution, and we took action to implement that.
Scott Shafer: Gavin Newsom decided he was going to allow the county of San Francisco to begin issuing marriage licenses to same-sex couples. And this stunned people. It kind of came out of the blue and within hours, people started flocking to San Francisco City Hall, lining up and taking their vows, taking marriage licenses out from the recorder’s office. And it became a huge national story.
It was pretty widely expected that the courts would shut this down because Newsom really didn’t have any legal right to be doing this. But 4,000 couples lined up over the course of a few weeks to get married at City Hall, and they became known as ‘Newsom twosomes.’ A lot of people sort of assumed that those would not really hold up legally. But it was, you know, a validation of relationships and it really became a huge international story.
Olivia Allen-Price: But questionable legally, as we soon find out. Right. What happens next?
Scott Shafer: So after this went on for a few weeks, there was a lawsuit filed by several parties to stop the marriages and declare them unconstitutional or illegal. And so the marriages were stopped. And a few months later, the California Supreme Court said, ‘You know what? Yes, these marriages are not valid. All the people who got married sorry, folks, you’re not married anymore and you have to stop doing this.’ And that’s where it stood for some time.
Olivia Allen-Price: I can’t imagine being married, and then you wake up one day and find a headline that you’re not anymore. That must have been really tough. But people didn’t give up. You know, they wanted those rights back. So what happens next?
Scott Shafer: So there was a lawsuit filed in the state of California in which Proposition 22, which had passed in the year 2000, was challenged as being unconstitutional. And it went to the California Supreme Court. And in May of 2008, the court declared that, in fact, Prop 22 was unconstitutional. And so there was a a kind of euphoria among same-sex marriage supporters on the day that the Supreme Court in California ruled by a 4 to 3 margin, that, yeah, in fact, same-sex couples could legally get married and many did.
Archival clip of couple at San Francisco City Hall: We’ve been planning this for a year to actually be able to get married and be a part of this time in history, and time in our history is amazing.
Scott Shafer: In that window of time in 2008, some 17,000 same-sex couples rushed to their city halls and county offices to take out marriage licenses and tie the knot. But at the same time, there was a group of religious conservatives, a group called Protect Marriage dot com was collecting the signatures to put on the ballot– a ballot measure that became known as Proposition 8, which declared again, as a constitutional amendment, that marriage in California was between one man and one woman.
So voters by 52% to 48% passed Proposition 8. It was kind of a shock for liberal, what we thought was liberal California, which had easily voted for Barack Obama over John McCain in that very same election, voted more narrowly, but nonetheless to take away the right of same-sex couples to get married. And there was a lot of anger. And there were some very, you know, big protests that broke out across California from LGBT folks and their supporters protesting the vote. But there it was. I mean, it was now the law of the land in California
News Clips: “Shame on you!/Supporters of gay marriage targeted L.A.’s Mormon temple protesting the more than $15 million the church poured into passing proposition 8…/Equal rights! Equal rights!/For the third straight day thousands marched in California protesting the election night passing of Proposition 8, banning same-sex marriage.
Scott Shafer: So after all the protests, there was a lawsuit filed in state court to try to overturn Prop 8, saying that it was a violation of the state constitution. But after considering all of the arguments on both sides, the state Supreme Court, which, you know, just like a year earlier had said same-sex marriage was legal, said no. Now the voters have changed the Constitution. And if the voters have done it, then it is in fact, constitutional. So that was, we thought, the end of the road.
Olivia Allen-Price: But then things move on to federal court. So we’re leveling up here. Where do we go next?
Scott Shafer: Not too long after the California Supreme Court upheld Proposition 8, there was an effort to file in federal court very quietly. You know, there was this really small group of people, including the Human Rights Campaign, which is based in Washington. Rob Reiner, the director, who came together and said, ‘why don’t we put our own legal case together? We’ll find some plaintiffs and we’ll file it in federal court in San Francisco and see what’ll happen. Maybe, maybe we can get this legalized that way.’
And there was a huge disagreement within the LGBTQ and the legal rights, civil rights communities, because there was a concern that if they filed this in federal court, the outcome was very unclear. And so there was a fear that it would be a setback for the movement ultimately if they didn’t win.
Olivia Allen-Price: And how does that case make its way through the courts?
Scott Shafer: Well, you know, these cases are assigned randomly. The backers of same-sex marriage really caught a break because the judge to whom this was assigned was Vaughn Walker. Vaughn Walker, although he was appointed by a Republican president, was known as kind of a Libertarian. He was also known as being gay. He wasn’t particularly open about it, but I think people thought, wow, this guy is a Libertarian. He’s gay and he is going to consider this case. Maybe we do have a chance of getting a favorable ruling.
One of the things that Vaughn Walker did at the very beginning that surprised everybody is that he called for an actual trial with evidence and witnesses and testimony on the record. And this surprised everybody. And I think in particular, the folks who were supporting the idea of legalizing same-sex marriage were really happy because this gave them a chance to put all of these arguments against same-sex marriage on trial. And a lot of those arguments, as came out during the course of the trial, really weren’t based in fact. They weren’t backed up by any kind of evidence or research. They were really kind of fringy–A lot of them considered homophobic, honestly, that really didn’t hold up under scrutiny.
Olivia Allen-Price: And how did it go?
Scott Shafer: Well, it was fascinating. I sat in on the courtroom for those two weeks of testimony here in San Francisco at the federal court building. And there was some very emotional testimony from the plaintiffs. There were a lesbian couple from Berkeley, two gay men from Los Angeles. They talked about the importance of getting married to them, why it was important to them, what it would mean for them to have this very public acknowledgment of their relationship. A historian from Yale testified.
And on the other side, there was a very small number of witnesses, maybe four. And they withered under cross-examination, Their testimony didn’t hold up. Subsequently, actually, some of them changed their minds about same-sex marriage. And so after several months of taking it all into consideration, Judge Vaughn Walker issued his ruling in August of 2010, striking down Prop 8, saying it was in violation of the U.S. Constitution and the equal protection and due process clauses.
Olivia Allen-Price: And with that decision, Prop 8 officially becomes a zombie law in California, still on the books, but it’s not enforceable. But just like supporters of same sex marriage had been, the Prop 8, people weren’t going to give up yet. There’s an appeal.
Scott Shafer: Yes. And in fact, Judge Vaughn Walker, although he struck down Prop 8, he put that on hold. He issued a stay. And that gave the supporters of Prop 8 an opportunity to appeal. And so they went to the Ninth Circuit. The appeals court upheld the lower court ruling and then they appealed to the U.S. Supreme Court. And it took until 2013, three years after the initial ruling, striking down Prop 8 for the U.S. Supreme Court to weigh in on same-sex marriage.
Olivia Allen-Price: So what really started as Newsom kind of going rogue and marrying people at San Francisco City Hall has now snowballed into the highest court in the United States, taking up the issue, essentially.
Scott Shafer: Exactly. And this issue was just a California ballot measure. And it wasn’t a very clean decision, ultimately. The attorneys for the ‘No on Prop 8’ side, they would have liked it if the U.S. Supreme Court said right then and there, ‘Same-sex marriage should be legal throughout the country.’ They didn’t do that. They didn’t issue a decision on the merits. What they said was, ‘You guys who are challenging this law, you don’t have standing, you don’t have legal standing. You’re not really directly affected by Proposition 8. Therefore, we’re going to let the lower court decision stand because you all don’t have a right to be here.’
Olivia Allen-Price: Got it. So same-sex marriage is legal, but only in California and various other states at that point had legalized it.
Scott Shafer: Correct. So it did apply to California. It was back on in California. So same-sex couples could get married, but it did not apply nationwide.
Olivia Allen-Price: So then how do we get to the place where we are today, where it’s legal nationwide?
Scott Shafer: So once Proposition 8 was struck down, yes, gay marriage, same-sex marriage was legal here in California, but not nationwide. But then a couple of years later, there was another case brought by a plaintiff named Jim Obergefell. He lived in Ohio and he wanted to get married to his partner. And he made a very similar case to the U.S. Supreme Court based on the 14th Amendment and the due process and equal protection clauses, saying that he should not be barred from getting married just because he’s gay. And in a 5 to 4 decision, the Supreme Court decided that, yes, in fact, same-sex marriage should be legal nationwide. That was a historic ruling and it changed everything. It changed the landscape.
Olivia Allen-Price: So this year we’re voting on Prop 3. How does Prop 3 tie into all this history?
Scott Shafer: So the 2013 decision striking down Prop 8 invalidated Prop 8. But, you know, the law was on the books. Technically, it was a zombie law. And there was concern in Sacramento that it could come back to life like a zombie. If, for example, the U.S. Supreme Court, you know, decided for whatever reason, that maybe that Obergefell decision was wrongly decided. We’ve seen that with abortion.
That said, Congress did pass legislation sort of enshrining the right to same-sex marriage into law in 2022. So it would be much harder to overturn that now. But in Sacramento, some of the opponents of Prop 8 said, you know what? Let’s just strip this out of the California Constitution once and for all. And so the state legislature, without any dissenting votes in the assembly or the Senate, voted to put Prop 3 on the ballot. That’s what we’re voting on in November. It would replace that language that the voters passed with Prop 8, with language saying that all people have the right to get married and that it’s a part of their fundamental right to enjoy life, liberty and the pursuit of happiness.
Olivia Allen-Price: You’ve sort of answered, I think, a part of this, but maybe you won’t elaborate. You know, Prop 8 has been sitting there, you know, in California’s constitution, unenforceable for a decade. Why make this change now?
Scott Shafer: It is somewhat symbolic on one hand, because, as you say, you know, it can’t be enforced. But I think it’s also kind of a statement that not just getting rid of the old language, but affirming, you know, in a positive way, the right to same-sex marriage, enshrining that in the law. Something similar happened, you know, a couple of years ago with abortion in California. Abortion is legal here. But there was a ballot measure fundamentally enshrining it into the state constitution as a way of really making an emphatic statement that this is a fundamental right that women should have. And I think they also want to send a message maybe to the rest of the country to show how far California has come. So they’re hoping that this ballot measure will pass overwhelmingly. And really just kind of put an exclamation point on this change in attitude and law. You know, that gay couples now can rely on.
Olivia Allen-Price: Now, back in 2008, when Prop 8 was passed, it had a lot of financial support from the Mormon temple and other religious organizations. What does opposition to Prop 3 look like at this point?
Scott Shafer: Right now, the opponents of Proposition 3 have $0. You know, they have to file financial statements with the state of California. And in the most recent filing, they literally had raised no money whatsoever. The yes side, on the other hand, has raised at least $4 million. And it has widespread political support from Governor Newsom, virtually every statewide elected official, if not everyone. The California Democratic Party, organized labor, the labor federation. There are corporations and just many others who are happy to give money to this cause, to take this anti-gay language out of the state constitution.
I don’t want to suggest that, like everyone now supports same-sex marriage because that’s not the case. Even though there were no no votes in the state legislature, there were a number of legislators, mostly Republicans, who just skipped the vote. They didn’t vote at all. It’s hard to say exactly whether they would have been yes or no. My guess is they oppose same-sex marriage, but didn’t really want to put their names to the opposition to Proposition 3.
And there are some groups that still, you know, have put ballot arguments in the voter guide. There’s a group called the California Capital Connection. They have an alliance with independent Baptist ministers and churches to put out a statement. And their statement reads, ‘God instituted marriage and defined it as a union between a man and a woman. And you know that people cannot redefine what God has already defined.’ So there’s definitely still opposition to same-sex marriage. It’s just that the broad public has really shifted in support.
Olivia Allen-Price: All right. Well, Scott Shafer is the co-host of Political Breakdown KQED daily podcast, all about California politics. Scott, before you go, just tell people what can they expect from you on the podcast over the next couple of weeks before Election Day?
Scott Shafer: California has a lot of races in play that will either help the Democrats take the House or keep it a Republican majority. It’s going to be an exciting sprint to Election Day.
Olivia Allen-Price: All right. Well, thanks for helping us out today, Scott.
Scott Shafer: Yes, happy to do it. Thank you for doing it.
Olivia Allen-Price: In summary, a vote yes on Prop 3 would take language that defines marriage as between a man and a woman out of California’s constitution. And it adds into the Constitution the right to marry regardless of sex or race.
A vote no on Prop 3 would keep the same-sex marriage ban in California’s constitution. There would be no change in who can marry.
That’s it for Proposition 3. If you’re a new listener, just tuning in for our Prop Fest series, be sure to subscribe to the Bay Curious podcast. Every Thursday we drop episodes that explore listener questions about the San Francisco Bay Area. It’s a lot of fun, and we always learn so much – so if you’re digging Prop Fest so far, I think you’ll enjoy our other work too.
Ericka Cruz Guevarra: Prop Fest is a collaboration between The Bay and Bay Curious podcasts. It is produced by Amanda Font, Christopher Beale, Ana De Almeda Amaral, Olivia Allen-Price, Alan Montecillo, Jessica Kariisa, and me Ericka Cruz Guevarra.
Olivia Allen-Price: Extra support from Katie Sprenger, Jen Chien, Maha Sanad, Holly Kernan, And the whole KQED family
Ericka Cruz Guevarra: You can find audio and transcripts for this series at KQED.org/PropFest.
Olivia Allen-Price: Our show is made in San Francisco at member-supported KQED. If you value podcasts like this one, please consider becoming a sustaining member of KQED. Learn more at KQED.org/donate.
Olivia Allen-Price: I’m Olivia Allen-Price
Ericka Cruz Guevarra: And I’m Ericka Cruz Guevarra. We’ll be back tomorrow with an explainer on Proposition 4 – the climate change bond.
