Prop. 3: Redefining Marriage
Proposition 3 seeks to redefine marriage in the California constitution. What changes would it make and what implications would those changes have in our state? Plus, should only Christian values be considered, or are there societal factors to consider as well?
Summary Overview
Proposition 3 is a constitutional amendment that proposes changing the language in the California constitution around marriage. Section 7.5 currently reads, “Only marriage between a man and woman is valid or recognized in California.”[1] Proposition 3 would repeal this language and replace it to instead read simply, “The right to marry is a fundamental right.”[2] Simply put, Proposition 3 would remove the boundaries of traditional marriage from the California constitution and would instead enshrine into law the concept that marriage is a universal right, regardless of sexual orientation.
Overview of Marriage in California
To understand where this proposition is coming from, we need to first understand the history of marriage law in California.
In 2000, voters passed Proposition 22, which added a provision to the Family Code, the set of laws that apply to family court in the state. The provision stated that only marriage between a man and woman is recognized in California.[3] However, in 2004, Gavin Newsom was the Mayor of San Francisco, and as Mayor he began to issue marriage licenses to same sex couples.[4] Same sex marriage was illegal in the state at the time. This caused controversy across the state, as gay rights activists praised the decision while opponents were concerned over the mayor’s disregard of the current law. The California Supreme Court halted and nullified the weddings 29 days after they began.[5]
As a result, in 2004, fifteen same-sex couples, advocacy groups, and the ACLU Northern California filed a lawsuit that was consolidated into what became known as the Marriage Cases. The Marriage Cases went through several court rulings and appeals before they ended up before the California Supreme Court. On May 15, 2008, the Supreme Court ruled that same sex couples are guaranteed the same right to marriage that heterosexual couples have due to equal protection guarantees.[6] This was the first change in the view of what marriage meant across the state.
But this wasn’t the end of the battles fought over marriage. As a reaction to the California Supreme Court’s ruling, voters passed Proposition 8 later in 2008. Prop. 8 added the language from Prop. 22 into the state constitution as an amendment. Proposition 22 had been a statute, but Prop. 8 made the statement of marriage being between a man and woman an amendment to the constitution itself. The proposition passed with 52% of the votes.[7] This amendment was passed with the intention of reestablishing marriage as being between a man and a woman considering the Supreme Court’s ruling earlier in the year.
Originally, the amendment was upheld by courts due to the fact that it created a carve out in the state constitution, providing for an exception to the equal protection clause. But, another lawsuit followed, this time rising through the courts all the way to the Federal Supreme Court. In the end, the courts ruled that Prop. 8 and the addition of the language on marriage was unconstitutional and could not be enforced. This was on the basis of the Equal Protection Clause of the Fourteenth Amendment. The decision became binding on June 26, 2013, and same sex marriage was then legal in the state of California.[8] It was just two years later, in 2015, that the Supreme Court ruled that this same reasoning applied to all states in the country, in the landmark Obergefell vs. Hodges decision, thus legalizing same sex marriage on a federal level.[9]
Why then does the California constitution still have the wording from Proposition 8 in Section 7.5? Most states have still retained the original language on marriage in their constitutions. In 2022, 25 states had both a statutory and constitutional ban of same sex marriage, even though the bans were rendered unenforceable by the Obergefell decision. California is one of five states that has just a constitutional amendment ban on the practice.[10]
Support
Supporters of Proposition 3 are then arguing that the language is outdated and not binding, which is why they are pushing forth the measure to remove it in line with the federal decision on same sex marriage. Proponents include groups like the ACLU of Northern California, Equality California, Planned Parenthood, and Governor Gavin Newsom himself.[11] These proponents also make the argument that the language should be removed in order to guarantee protection for same sex marriage in the event that the Obergefell decision is overturned by the Supreme Court, which has not been brought before the Court but has been a topic of discussion among activists since the Court overturned Roe v. Wade in 2022.[12] The argument is that if the courts could overturn Roe v. Wade, they could find precedent to overturn Obergefell, in which case the language in each state’s constitution would become the law of the land, and if California still has it on the books that marriage is between a man and a woman, then same sex marriage would once again become illegal.
But is that the case? Well, not really. First, the language in the state constitution was rendered an unenforceable and discriminatory by the Supreme Court back in 2013, before Obergefell, so same sex marriage was legal in California for two years before it was legal on a federal level. Second, President Biden signed the Respect for Marriage Act into law in 2022, which guarantees the right for same sex couples to marry across the nation, regardless of what happens with Obergefell. This act was passed for the same goal – to guarantee same sex marriage cannot be outlawed in the states should the Supreme Court overturn the Obergefell decision.[13] Even if the decision was overturned, same sex marriage would not be outlawed in the State of California, regardless of the language in the state constitution.
Opposition
While this section of the California constitution is rendered unenforceable, there is still argument from opponents of Prop. 3 as to why that language shouldn’t be changed. What are the arguments against taking it out of the constitution?
Opponents include groups like the California Family Council, Them Before Us, and The American Council of Evangelicals.[14] They argue that first, removing the language is not necessary because same sex marriage is already legal in the state by the Supreme Court ruling, that it is legal federally by Obergefell, and that it is protected by President Biden’s Respect for Marriage Act. But, more than that, opponents of Prop. 3 express concerns not just about removing the language defining marriage, but more so about the language that would take its place.
The constitution instead would simply say, “The right to marry is a fundamental right.” However, these groups argue that it gives no definition of marriage and puts no restrictions on who can marry. This vague statement could open the door to arguing that other forms of partnerships, like polyamory or incest, are legal because it doesn’t define who has that right to marry or what marriage is.[15] By not just repealing language about marriage between a man and woman, but replacing it with the assertion that marriage is a fundamental right, this paves the way for further changes to what marriage looks like across our state.
The consequences wouldn’t end there, says Katy Faust of the organization Them Before Us. She argues that changing the definition of marriage puts the desires of adults over the needs of children, as changing the family structure will always affect the kids involved.[16] Whether it is same sex marriage, polyamory, or incest, all types of nontraditional unions have impacts on the family unit as a whole, which includes the children that are a result of that union, whether biologically or by adoption.
Are there any merits to these opposing arguments? Would this language change open the door to the situations described? While it is easy to hear some of these arguments and see them as outlandish, they actually aren’t all that far off.
For example, when it comes to polyamory, both Oakland and Berkeley have passed regulations to legally protect multi-partner families. These protections assert that they protect polyamorous or nontraditional family arrangements from discrimination in housing, employment, health care, and immigration. Most importantly , they also extend to family courts, as custody cannot be revoked from parents for having multiple partners.[17] If then our state has already moved in certain districts to legalize and protect polyamory, it doesn’t seem too far off that vague wording in the California constitution granting marriage as a protected right without any limits or bounds defined for it could aid in soon recognizing polyamory as a valid form of marriage across the state.
Responses
What then are we to think about Proposition 3?
I first need to stop and address something before going any further. This proposition is unlike the previous propositions that we have looked at together. Issues like crime, rent control, or government bonds are largely policy-driven, economic, and statistic-based issues. It’s easy to break down the economics of how supply and demand works and then apply that to something like rent control, or dive into what problems are plaguing the public school system and what solutions could best address them. However, proposition 3 is not like the others. When it comes to defining marriage, this is clearly a moral issue, not simply a legal one. How you view proposition 3 will depend largely on your understanding of marriage, the authority you derive your morality from, and the principles by which you are convicted to live your life. The two are not inseparable; it is impossible to discuss a topic like marriage without appealing to morality, which in many cases means appealing to the religion or worldview that you hold.
I am a Christian, which means I derive my morality from the Word of God. I do not have the authority to define good and bad, and I do not have the ability to redefine what God has already spoken on. Marriage is an issue that the Bible has clearly spoken on, and I am bound to what God has defined as good.
In the beginning of Genesis, we see that God is the one who creates marriage. From the very beginning, He establishes the boundaries and definition of it – Genesis 2:24 says, “Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh.” Jesus affirms this design throughout the Gospels. In Matthew 19:4-6, He tells the Pharisees, “Have you not read that he who created them from the beginning made them male and female, and said, ‘Therefore a man shall leave his father and his mother and hold fast to his wife, and the two shall become one flesh’? So, they are no longer two but one flesh. What therefore God has joined together, let not man separate.” It is clear from Scripture that marriage was designed to be one man and one woman, forsaking all others, and joining together in a covenant by the power of God, meant to be unbroken and unending in their lifetime.
Why did God do this? After He creates this union in Genesis, He calls it good. He designed marriage this way for the good of the people involved, for the protection and establishment of the family unit, and for the good of society. And we see this, not just for Christians or religious people, but we actually see this play out in society as well. Of course, as a Christian, my motivation is first and foremost to live by the Word of God and defend what He has defined as good, so any societal argument is not as compelling to me, but it still is worth mentioning that the data does prove out that this design is good for society, and should be compelling to all people, regardless of your religious beliefs.
I want to look at a few statistics and studies on the impact of the family unit within society, as well as what happens as we move away from the traditional family. The Wilson School of Public and International Affairs at Princeton University and the Brookings Institution, which historically is a more liberal leaning institution, says, “Most scholars now agree that children raised by two biological parents in a stable marriage do better than children in other family forms across a wide range of outcomes.”[18] What is this based on? If such a prestigious institution as Princeton University is making this claim, what data supports this idea?
They conducted a study on the decline in marriage where its authors opened with this statement, “Although it was once possible to believe that the nation’s high rates of divorce, cohabitation, and nonmarital childbearing represented little more than lifestyle alternatives brought about by the freedom to pursue individual self-fulfillment, many analysts now believe that these individual choices can be damaging to the children who have no say in them and to the society that enables them.”[19]
The study emphasizes the point that the family unit is important for a bigger reason than just marriage itself, it is important for children. Children suffer whatever effects are placed upon them by their parents. The organization We Are Donor Conceived surveys have found that a majority of those conceived via sperm or egg donation 1) see their conception as a core part of their identity, 2) wonder what traits they have inherited from their donor, 3) and feel as though they have an incomplete family history. Just under half report feeling distressed, angry, or sad at the circumstances of their conception.[20] Oftentimes, adults do not think about how these circumstances impact children. It is often said that kids are resilient and that they will adapt, but this survey was created to give a voice to those who are donor conceived to express how their conception has impacted them – showing it does, in fact, have an effect, even if they are able to adjust and adapt.
In the same way, children are impacted by the families they are raised by. Parents have rights to their children, and children also have rights to their parents. The United Nations recognized this right in its Convention on the Rights of the Child in 1989.[21] What same sex marriage does is it takes away the possibility of any children being raised by both biological parents, as same sex couples will need to use some type of donor or potentially surrogate to have children, and then it also takes away either the child’s mother or father by raising children in a home of either two mothers or two fathers. But both mothers and fathers are important in children’s lives. These assertions are backed by the U.S. National Health Interview Survey – which found that children raised in same sex households were more than twice as likely to have suffered emotional or behavioral difficulties, and reported emotional problems rated as definite or even severe as nearly three times as likely as children raised in traditional households.[22] Even beyond these statistics, there are countless personal anecdotes from individuals who were raised in same sex households who describe their longing for a father or mother. One such example is Millie Fontana, who was raised by lesbian mothers, but who is outspoken about her struggles with desiring a father as she grew up. She describes her experience as, “The truth is that growing up with two mothers forced me to be confused about who I was and where I fit in the scheme of the world.”[23]
The National Library of Medicine compiled a series of studies conducted by The Institute for Marital Healing further confirming Millie’s experience in others as well. They found that infants or toddlers most often prefer mothers to fathers when they are hungry, sick, or scared. Mothers, in turn, were found to be better at understanding their children’s emotions as well as distinguish between their infants’ cries than fathers were. On the other side, fathers were found to be better at providing both play and discipline to children, and children felt more safe and less afraid when their father was present.[24]
Despite this evidence that children experience negative outcomes when raised in same sex households, and their need for both a mother and father figure in growing up, the narrative that is often repeated is that there is no difference in outcome for children raised in same sex households versus traditional households. For example, the American Psychological Association asserted back in 2005 that there are no studies that distinguished any disadvantages of children raised by gay or lesbian parents.[25]
However, in 2012 a research study of the APA found that their claims were not scientifically based. This is because 26 out of 59 studies conducted by the APA on the topic did not include heterosexual comparison groups. Even in those where comparison groups were used, they did not use traditional, two parent households, but rather used single mother households. The 2012 study could not substantiate the claims in any of the APA’s 59 studies. So, the narrative that is touted by these organizations and is often believed in the mainstream is backed by studies that have been largely debunked.[26]
It seems from research that there have been negative impacts on children raised in same-sex households, and that children long for the presence of a mother and father. As Christians, we may not need these studies because we know that only what God has designed is good, but the evidence further supports the idea that the nuclear family is a vital part of a child’s life, and that the breakdown of traditional family values does have impacts on those raised within alternative family structures. And just to be clear: I am not saying that people in same sex relationships cannot be loving parents toward children. Hear me clearly, because again, I am not saying that if you are lesbian or gay that you are automatically precluded from being kind or loving or parental toward a child. But the reality is that mothers cannot replace fathers, and fathers cannot replace mothers. No matter how loving you are, you can’t escape that reality, and the data cited is proving it to be true.
The reason why it is important to focus on children is because when it comes to how we are to think about Proposition 3 is because the question in front of us is not to evaluate if gay marriage is good, bad, or neutral. That is not what we are looking at. The question is: should the government, specifically for us the state of California, erase the idea that marriage is between a man and a woman and open it to any type of union? Your morality will dictate how you answer the first question, but the evidence of the impacts of same sex unions on society should be the primary factor considered by the government when making policy. The government’s main responsibility is to restrain evil and promote what is good, and it does that by defending the innocent and protecting the vulnerable. There is no one more vulnerable in society than our children and matters of policy should not place the feelings or desires of adults above the real effects on children. Quoting Katy Faust once again, “Children of same-sex couples are denied a mother or father, have no connection to half of their extended family, and are alienated from half of their biological identity.”[27] This violates a child’s right to their biological parents.
Promoting the nuclear family is rooted in traditional values, but it is not spreading Christian Nationalism, as some like to say. Rather, it is the government recognizing the negative outcomes on society that certain lifestyles have and taking a stand in defense of those who will be affected by them. It also means being clear and precise in defining marriage, because opening the door to polyamory or incest is neither compassionate nor kind. Our government should promote the good in society, meaning promoting family ideals that lead to healthy marriages, having children, raising children in homes where they are proven to most thrive, and providing stability for individuals throughout their entire lives. And ultimately, we have to be reminded, that these are the values that our nation was founded upon. Joseph Story, who is known as the Father of Jurisprudence and served as a Justice on the Supreme Court in the 1800s, wrote, “One of the beautiful boasts of our municipal jurisprudence is that Christianity is part of the Common Law. There never has been a period in which the Common Law did not recognize Christianity as lying at its foundations. I verily believe that Christianity is necessary to support a civil society, and shall ever attend to its institutions and acknowledge its precepts as the pure and natural sources of private and social happiness.”[28]
Our society today has moved far away from these ideas, but our early government leaders saw Christian values as the underlying basis for good in our society.
Lastly, you might be wondering, why does this matter if the language is already ineffective anyway? Same sex marriage is already legal, so what does it matter if the definitions change? I think there is definitely weight to the arguments presented earlier about the language opening the door to include many other types of behavior as marriage. But I really have to answer that question as a Christian, because even regardless of societal good – which I believe there is much societal good here – but regardless of that, I cannot ignore biblical truth, and no Christian should. Government is given its authority by God, and God has given us a clear definition of marriage. The government does not have the authority on its own to redefine what marriage is, because the government is not the independent arbiter of truth. God has defined what marriage is to be, and as a Christian that means I uphold that definition, I defend that definition, and I cannot vote against that definition, no matter if the language is “in effect” or not.
I know that for some of you, you may disagree with my values. I recognize because of different worldviews you may not agree with my views on same sex marriage. We can disagree! But I would challenge you to at least consider the statistics when it comes to societal impact, and to define for yourself the role of government in shaping society.
And, if you DO share my values, then my encouragement to you would be this: vote no on proposition 3.
References:
[1] California Legislative Information. “ACA-5 Marriage Equality,” July 20, 2023. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202320240ACA5&showamends=false.
[2] Ibid.
[3] League of Women Voters of California. “Marriage Equality - League of Women Voters of California,” December 13, 2023. https://lwvc.org/issue/marriage-equality/.
[4] Mason, Melanie. “When Gavin Newsom Issued Marriage Licenses in San Francisco, His Party Was Furious. Now, It’s a Campaign Ad - Los Angeles Times.” Los Angeles Times, May 20, 2018. https://www.latimes.com/politics/la-pol-ca-gavin-newsom-gay-marriage-20180515-story.html.
[5] Ibid.
[6] ACLU of Northern CA. “In Re Marriage Cases,” May 15, 2008. https://www.aclunc.org/our-work/legal-docket/re-marriage-cases#:~:text=On%20May%2015%2C%202008%2C%20the,sex%20couples%20from%20civil%20marriage.
[7] Howard University. “A Brief History of Civil Rights in the United States: Proposition 8.” Uploaded by Vernon E. Jordan Law Library, January 6, 2023. https://library.law.howard.edu/civilrightshistory/lgbtq/prop8.
[8] Ibid.
[9] ACLU of Ohio. “Obergefell V. Hodges,” January 16, 2014. https://www.acluohio.org/en/cases/obergefell-v-hodges#:~:text=On%20June%2026%2C%202015%2C%20the,lawfully%20performed%20out%20of%20state.
[10] Movement Advancement Project. “Underneath Obergefell: A National Patchwork of Marriage Laws.” LGBT Map, 2022. https://www.lgbtmap.org/file/2022-spotlight-marriage-report.pdf#:~:text=Iowa%20is%20the%20single%20exception%20because%2C%20prior,need%20to%20be%20passed%20to%20remove%20these.
[11] Christopher, Ben. “California Proposition 3: Same-sex Marriage.” CalMatters, September 11, 2024. https://calmatters.org/california-voter-guide-2024/propositions/prop-3-same-sex-marriage/.
[12] Ballotpedia. “California Proposition 3, Right to Marry and Repeal Proposition 8 Amendment (2024) - Ballotpedia,” 2024. https://ballotpedia.org/California_Proposition_3,_Right_to_Marry_and_Repeal_Proposition_8_Amendment_(2024).
[13] Aguilera, Jasmine. “Biden Just Signed Same-Sex Marriage Protections Into Law.” TIME, December 13, 2022. https://time.com/6239672/house-passes-same-sex-marriage-protections/.
[14] Christopher, “California Proposition 3: Same-Sex Marriage.”
[15] California Family Council. “Proposition 3: Marriage Vs. California - California Family Council,” September 14, 2024. https://www.californiafamily.org/proposition3/.
[16] Them Before Us. “Home 2024,” n.d. https://thembeforeus.com/.
[17] McClurg, Lesley. “Berkeley Passes Legal Protections for Polyamory, Joining Oakland.” KQED News, May 8, 2024. https://www.kqed.org/news/11985408/berkeley-passes-legal-protections-for-polyamory-joining-oakland.
[18] Them Before Us. “Biology Matters,” n.d. https://thembeforeus.com/biology-matters/.
[19] Haskins, Ron, Sara McLanahan, and Elisabeth Donahue. “The Decline in Marriage: What to Do.” Journal-article. The Future of Children, season-03 2005. https://futureofchildren.princeton.edu/sites/g/files/toruqf2411/files/media/marriage_and_child_wellbeing_15_02_policybrief.pdf.
[20] We Are Donor Conceived. “We Are Donor Conceived 2019 Survey Results - We Are Donor Conceived.” We Are Donor Conceived (blog), October 22, 2020. https://wearedonorconceived.com/uncategorized/we-are-donor-conceived-2019-survey-results/.
[21] United Nations. “Convention on the Rights of the Child.” Audiovisual Library of International Law, November 20, 1989. https://legal.un.org/avl/ha/crc/crc.html.
[22] Them Before Us. “Same Sex Parenting,” n.d. https://thembeforeus.com/fast-facts/.
[23] Fontana, Millie. “Millie Fontana’s Story | ‘Growing up With Two Mothers Forced Me to Be Confused About Who I Was and Where I Fit in the Scheme of the World.’” Them Before Us, April 9, 2024. https://thembeforeus.com/millie-fontana/.
[24] Fitzgibbons, Richard. “Growing up With Gay Parents: What Is the Big Deal?” National Library of Medicine, December 2, 2014. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4771005/.
[25] Committee on Lesbian, Gay, and Bisexual Concerns, Committee on Children, Youth, and Families, Committee on Women in Psychology, and American Psychological Association. Lesbian & Gay Parenting. American Psychological Association, 2005. https://www.apa.org/pi/lgbt/resources/parenting-full.pdf.
[26] Fitzgibbons, “Growing up With Gay Parents: What Is the Big Deal?”
[27] Them Before Us. “Marriage Matters,” 2021. https://thembeforeus.com/wp-content/uploads/2022/07/4.-Marriage-Matters-Handout-1.pdf.
[28] Flick, Stephen. “Christian Quotes From the Founding Fathers.” Christian Heritage Fellowship (blog), June 29, 2024. https://christianheritagefellowship.com/christian-quotes-from-the-founding-fathers-2/.
