California Law and the Future of LGBTQ Rights: What You Need To Know

Learn how California initiatives could impact LGBTQ rights—and how The Colleges of Law is empowering students to advocate for equality and justice in the legal system.

As California voters head to the polls this fall, they will have the opportunity to safeguard marriage equality for LGBTQ people throughout the state.

Currently, the California Constitution stipulates that marriage must be between one man and one woman. Proposition 3 seeks to amend this language, establishing marriage equality as a fundamental right.

Standing at the forefront of LGBTQ rights and education, The Colleges of Law champions diversity and equity in the legal field. In this article, learn more about the greater implications of Proposition 3 and what current and future legal professionals can learn from this cultural moment.

What Is Proposition 3? And What’s at Stake for California?

Working proactively to protect LGBTQ rights, California state Sen. Scott Wiener and Assemblymember Evan Low introduced Proposition 3, a proposed constitutional amendment that would enshrine same-sex marriage protection for California.This amendment would protect marriage equality throughout the state should the U.S. Supreme Court overturn Obergefell v. Hodges.

Marriage equality has been federally recognized in the United States since 2015. However, the legislative landscape around LGBTQ rights and same-sex marriage continues to evolve. With the rise of anti-LGBTQ legislation across state and federal levels, it’s more important than ever to ensure state constitutional language protects marriage equality.

“In the last several years, there has been a wave of anti-LGBTQ laws passed across multiple states,” says Jackie Gardina, J.D., Ed.D., dean and chief academic officer at The Colleges of Law. “The ACLU is tracking 527 anti-LGBTQ bills in the 2024 legislative session alone, and this doesn’t include the laws that have passed in previous years.”

In particular, there is a growing fear that federally protected marriage equality could be overturned. Recent rulings indicate a willingness among some justices to revisit established precedents, includingObergefell v. Hodges. Because of this, federal protections for same-sex marriage may be at risk.

Anti-LGBTQ rhetoric—whether in law, media, or elsewhere—has a direct link to increased violence, too. “The codification of anti-LGBTQ+ sentiment and the use of inflammatory language has resulted in an increase in violence against the LGBTQ+ community,” Gardina says. “These threats have taken the form of seemingly benign actions such as product and store boycotts to more menacing actions such as bomb threats.”

Background

In the federal case Obergefell v. Hodges, the U.S. Supreme Court legalized marriage equality in all 50 states, superseding any state same-sex marriage bans. Since then, all states have been required to recognize same-sex marriage and issue marriage licenses for same-sex couples.

Before that, California was a hotseat for debate about same-sex marriage.See key moments in the timeline below.

In 2008, California voters approved Proposition 8, a state constitutional amendment that established marriage to be only between a man and a woman. The U.S. Court of Appeals for the Ninth Circuit District Court overturned Proposition 8 in 2010, but the language still exists in the California Constitution.

“California leads the way in LGBTQ protections and cutting-edge pro-equality legislation,” Assemblymember Low says. “Our constitution should reflect those values.”

How the Overturning of Roe v. Wade Threatens Marriage Equality

In 1973, the U.S. Supreme Court’s ruling in Roe v. Wade recognized that the decision whether to continue or end a pregnancy belongs to the individual, not the government, according to the Center for Reproductive Rights. This protected bodily autonomy and reproductive rights for almost 50 years. In June 2022, these civil liberties were unraveled when the Supreme Court voted to overturn Roe v. Wade, claiming there is no federal right to abortion.

The consequences of this decision extend beyond reproductive rights. After this ruling, Justice Clarence Thomas issued a concurrence naming several additional Supreme Court decisions he would like the high court to reconsider, including Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges. For many, the overturning of Roe v. Wade signaled a threat to marriage equality and other civil liberty protections.

• Griswold v. Connecticut (1965): Established the right for married couples to buy and use contraceptives.
• Lawrence v. Texas (2003): Established the right for consenting adults to engage in same-sex intimacy.
• Obergefell v. Hodges (2015): Established the right for same-sex couples to be married.

Marriage Equality in California: A Timeline

1996: The Defense of Marriage Act (DOMA) was signed into law, banning federal recognition of same-sex marriage.

2004: Then-Mayor Gavin Newsom begins issuing marriage certificates to same-sex couples in San Francisco—a direct defiance of the federal ban on gay marriage.

2008: California voters pass Proposition 8, a constitutional amendment that bans same-sex marriage in the state.

2010: The U.S. District Court overturns Proposition 8, affirming that it violates the Equal Protection and Due Process clauses of the U.S. Constitution.

2013: Continued appeals bring Proposition 8 to the Supreme Court, which rules in Hollingsworth v. Perry to allow same-sex marriage to resume in California.

2015: In Obergefell v. Hodges, the Supreme Court issues a landmark ruling that legalizes same-sex marriage.

2022: The Supreme Court votes to overturn Roe v. Wade, which had protected abortion rights throughout the U.S. In a written response following the ruling, Justice Clarence Thomas signals the court should pursue similar measures for issues related to contraception and same-sex marriage. This leads many to fear that marriage equality and access to contraception may lose federal protections.

2022: The Respect for Marriage Act was passed by Congress and signed into federal law by President Joe Biden.

2024: The California Senate introduces Proposition 3, seeking to protect marriage equality at the state level by amending exclusionary language in the California Constitution. Voters will decide whether to approve Proposition 3 in the 2024 election.

Doesn’t the 2022 Respect for Marriage Act Protect Marriage Equality?

In short, no.

The Respect for Marriage Act—passed with bipartisan support in Congress in 2022—provides limited protection for interracial and same-sex marriages.

“The need for the Respect for Marriage Act highlights the dramatic shifts in constitutional protections,” Gardina says. “The act was created out of concern that the Supreme Court could strip those rights away, leaving couples to the whims of state legislatures.”

While the Respect for Marriage Act requires states to recognize existing same-sex marriages, it does not require them to issue additional marriage licenses.

By enshrining marriage equality in California’s Constitution, Proposition 3 serves as a proactive measure to fortify marriage equality against potential judicial rollbacks.

How Does the State Constitution Protect Civil Liberties?

In the case of Proposition 3, the Constitution of California could provide an additional layer of protection that goes beyond federal law.

State laws and constitutions play an important role in creating legal protections for human rights, often providing more expansive rights than federal law. In an essay for the Vermont Law Review,Gardina reminds us that interpretation of U.S. Constitutional law often changes over time. Should the Supreme Court overturn marriage equality protections, state constitutions and laws will determine whether same-sex marriage is authorized within each respective state.

The impact of marriage equality goes beyond legal protections, too; legalized marriage legitimizes and historicizes the existence of LGBTQ people. “When we talk about marriage equality, the conversation is inevitably focused on tangible rights and benefits, but we are also creating a historical record,” Gardina says. “Until states began to issue marriage licenses, there were no public records telling us who in our family tree might have identified as gay or lesbian. Instead, we were forced to search for aunts or uncles who never married, or for other signs that suggested we were not alone.”

By embedding marriage equality in the state constitution, California would create a robust legal framework that protects against future challenges. It may also inspire other states to follow suit.

How Is Prop 3 Creating Precedent for Future Legal Efforts?

Any legal scholar will tell you that precedents matter.

State-level protections, in particular, often serve as critical bulwarks against discriminatory practices.

As Proposition 3 aims to establish a clear constitutional right to marry, it could influence future legal battles concerning LGBTQ rights and protections—in California and beyond.

This decision can also establish an important precedent for other states looking to protect marriage equality.

How Can Californians Make a Difference?

In a recent “SideBar” podcast episode, Gardina and Mitchel Winick, J.D., president and dean of Monterey College of Law, speak with David Pepper, author of “Laboratories of Autocracy: A Wake-Up Call from Behind the Lines.”Pepper encourages everyone to “get involved at the local level: show up at city council and school board meetings; support local, independent journalism; volunteer for a candidate you support; donate money; and participate in all elections—not just those focused on federal office.”

Gardina further emphasizes the importance of local elections: “We have seen the power of voter engagement,” Gardina says. “Every day, there are individuals working tirelessly to stem the undermining of our democracy. It is up to all of us to hold state and local policymakers accountable, and we can’t do it sitting on the sidelines.”

What Can Prop 3 Teach Legal Professionals?

Proposition 3 is not merely a legal amendment—it is a proactive step toward safeguarding marriage equality in California and beyond.

For legal practitioners, understanding the dynamics of judicial review and constitutional law will be crucial in defending and advocating for rights that could be challenged at any time.

Learning about the legal landscape of marriage equality in California can help legal professionals better understand constitutional law, legal precedent, and values of justice and equality that lie at the heart of the legal profession.

In both the classroom and the courtroom, discussions surrounding Proposition 3 can deepen understanding of constitutional law, civil rights, and the intersectionality of legal issues. Proposition 3 provides a unique opportunity for law students and practitioners to engage with real-world issues of social justice. In particular, this vote is a valuable opportunity for current and future legal professionals to better understand the role constitutional protections play in safeguarding civil liberties—and how constitutional amendments can create momentum for broader social change.

How Is The Colleges of Law Working To Support LGBTQ Equality?

The Colleges of Law is actively advancing LGBTQ rights through a comprehensive approach that includes:

• Delivering an inclusive curriculum addressing how diversity and inclusion impact legal issues
• Creating access to a legal education for California professionals looking to advocate for civil liberties
• Preparing more legal professionals for areas in California that have a shortage of practitioners
• Supporting student-led organizations and local nonprofit work focused on LGBTQ advocacy

This work contributes to diversifying the legal profession, too. “We are committed to opening doors for tomorrow’s lawyers to reflect and better represent the state of California,” says Andrea Funk, J.D., associate dean of Hybrid J.D. and online learning at The Colleges of Law.

By equipping future legal professionals with the necessary tools for advocacy, The Colleges of Law is committed to promoting equality and social justice.

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