Californians should repeal Proposition 8 now, before we need to. Our state’s same-sex marriage ban was struck down by courts years ago, but its text remains part of the California Constitution, wedged uncomfortably between the equal protection clause and protections against employment discrimination: “Only marriage between a man and a woman is valid or recognized in California,” it says.
The language comes directly from the proposition, which passed in 2008 in the midst of a contentious tug-of-war over marriage equality in the state. A federal district court judge found Proposition 8 unconstitutional in 2010, but legal appeals kept it alive until 2013, when a U.S. Supreme Court ruling finally allowed same-sex weddings to resume in California. Laws that are found unconstitutional don’t get erased; they just lose their legal force. So the text of the ban lies in wait, ready to spring back into action if given the chance. The election of Donald Trump might provide that chance.
Here’s how Proposition 8 could make its comeback. Obergefell vs. Hodges and the other Supreme Court decisions that led to the nationwide legalization of same sex marriage were all 5-4 votes in favor of gay rights. That slim majority won’t change when Trump fulfills his promise to replace Justice Antonin Scalia — who voted against marriage equality — with an equally conservative justice. However, three other justices are 78 or older (Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer). Should Trump get the chance to replace any one of them with another judge “very much in the mold of Scalia” — again, as he has promised — the 5-4 split will almost certainly flip. A new conservative majority would have little inclination to respect a right to same-sex marriage that Chief Justice John G. Roberts claims has “no basis in the Constitution.”
A new conservative majority on the high court would have little inclination to respect a right to same-sex marriage.
If the Obergefell decision indeed falls, the federal district court order that allowed for same-sex marriage in California would soon be dissolved. California would return to 2008: Proposition 8 would again be the law. Existing marriages would remain in force, but same-sex couples would no longer be able to get married here.
California voters would no doubt quickly get to work repealing Proposition 8. But that would require a new initiative, a long and complicated effort involving either a two-thirds vote in the Legislature or a signature drive to get a new measure on the ballot and then a win at the polls. For a year or two at least, discrimination against gay and lesbian couples would again be the law of the state. This is a risk we can avoid by starting the initiative process now.
You may be tempted to think repeal simply won’t be necessary. After all, when Trump was interviewed on “60 Minutes” a few days after the election, he referred to Obergefell vs. Hodges as settled law, repudiating the Republican Party’s 2016 platform, which condemned the court’s marriage equality rulings. But don’t be reassured. Trump doesn’t get a vote on whether Obergefell stands. That choice belongs to the justices, including future appointees who see Obergefell in the way Scalia did: as a “threat to American democracy.”
The California LGBT community, especially those who are transgender or undocumented, may face other more immediate threats under the new administration than the return of Proposition 8. But the threat to marriage equality in California is of our own making. Californians can’t control a lot of what will emanate from Washington in the next four years, but we can control what happens here. We enshrined discrimination in our state constitution in 2008. We own Proposition 8 — and we can disown it, once and for all.
Brian Soucek is acting professor of law at UC Davis School of Law. email@example.com.