Same-sex marriage gains constitutional protections as California voters approve Prop. 3

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California voters passed Proposition 3 on Tuesday, amending the state’s constitution to  affirm the right to same-sex marriage.

Same-sex marriage is already legal in California, so the amendment won’t change anything, at least in the foreseeable future. Rather, the constitutional change removes a previous provision that barred same-sex marriage and adds new protections in the event the U.S. Supreme Court overturns existing precedent.

“We’ve always known that at some point we need to get this discriminatory provision out of the California constitution,” said Sen. Scott Wiener, a San Francisco Democrat and a co-author of Prop. 3. But he said it wasn’t urgent until the Supreme Court overturned Roe v. Wade, the landmark 1973 case that provided the right to an abortion, that “we saw that marriage equality was at risk.”

Supporters have poured nearly $4 million into the campaign for Prop. 3. Opponents haven’t officially spent any money opposing it, though one special interest group, the Campaign for Children and Families, spent over $35,000 in related ads. The ads claim that Prop. 3 would “functionally legalize child brides,” “incestuous marriages,” “polygamy,” and “bigamy.”

Jessica Levinson, a constitutional law professor at Loyola Marymount University, said the ads are misleading. “A fundamental right to marriage is different from an absolute one,” she said. “Fundamental means very stringently protected. Absolute means no exceptions.”

For example, the right to freedom of expression under the First Amendment is a fundamental right, but there are many instances where that right is not protected, such as the use of child pornography.

The Campaign for Children and Families did not respond to a request for comment.

Getting married, three times

The broad support for Prop. 3 is a stark contrast to years of voter opposition in California. That opposition is part of why Randy Laroche and his partner David Laudon have gotten married three separate times. When they first met in 1996 federal law prohibited same-sex marriage, and in 2000, California voters passed a proposition outlawing the practice in the state too. Laroche and Laudon still wanted to get married though, so they held a private ceremony in 2002, since the government didn’t recognize their union.

In 2004, then-San Francisco Mayor Gavin Newsom gained national attention for issuing marriage licenses in violation of federal and state law. Laroche and Laudon got married again, in a legal ceremony at San Francisco City Hall. But a few hours later, the California Supreme Court ruled their marriage null and void. In 2008, the California Supreme Court overturned the 2000 law, so Laroche and Laudon got married a third time. 

“We’ve always known that at some point we need to get this discriminatory provision out of the California constitution.”

state Sen. Scott Wiener

Later that year, California voters passed Proposition 8, amending the state constitution to define marriage as a union “between a man and a woman.” Larchoche’s 2008 marriage was still legal, but the state would no longer authorize new marriages. The U.S. Supreme Court overturned Prop. 8 in 2013, and later, the court ruled that same-sex couples could marry anywhere in the U.S. 

Prop. 3 will remove the Prop. 8 language from the state constitution.

Although Prop. 8 doesn’t have an effect anymore, it could. A similar scenario already took place in Arizona, where the state had a defunct, Civil War-era law banning abortion in nearly every case. When the U.S. Supreme Court overturned the federal right to an abortion in Dobbs v. Jackson, that old law created weeks of panic and confusion, both in Arizona and California. Arizona has since repealed the law.

In his concurring opinion in Dobbs v. Jackson, Justice Clarence Thomas suggested that the court reconsider other precedents too. He specifically mentioned cases that granted the right to same-sex marriage, the right to access contraceptives, and the right to engage in private, consensual sex. 

It’s unlikely that the court actually overturns those precedents, said Levinson, the law professor. “I don’t see any of the other justices espousing that view.” She said that the court case upholding the federal right to same-sex marriage, Obergefell v. Hodges, has a strong legal argument that would be difficult to overturn under Thomas’ current logic.