This week’s leak of a draft Supreme Court opinion that would unwind abortion rights has sparked concerns that popular federal protections for gay marriage, which rely on a similar interpretation of constitutional rights to privacy, might also soon be back up for debate.
“I really think the challenges to gay marriage are next just in terms of our cultural moment, our political moment, and the reasoning in that decision,” said Jessica Levinson, a Loyola Law professor who focuses on the Constitution and Supreme Court.
Such predictions have Democrats at the state and federal levels discussing plans to vote on codifying marriage equality into law. And that’s made the once-legally-settled issue of gay marriage in particular, and LGBTQ rights at large, a talking point once again heading into the midterm elections.
Nearly half of the 70 candidates who are running in primary races this year for state and federal seats covering portions of Orange County said they’d support the legality of gay marriage if the question came before them for a vote. A dozen candidates said they’d oppose letting same-sex couples get married, while another 27 declined to answer a written question about how they’d vote on the issue.
While no local Republicans spoke in favor of federal protections for abortion rights, seven of the 31 local candidates who support marriage equality rights are Republicans.
That includes two House challengers: Amy Phan West in CA-47 and Lisa Bartlett in CA-49. race. It includes three Assembly candidates: Jason Gray in AD-70, Benjamin Yu in AD-72 and incumbent Steven Choi in AD-73. And it includes two state Senate candidates: Rhonda Shader in SD-34 and Matt Gunderson in SD-38.
For Gunderson, he said his support for gay rights is personal. He grew up in Wisconsin as one of eight siblings, and his brother Steve Gunderson was a member of Congress from 1981 to 1997.
“He was one of the first openly gay Republicans in public office,” Gunderson said. “I am proud of that and I am proud that he is my brother.”
All 12 of the candidates who oppose allowing gay people to legally wed are Republicans.
During an April speech to GOP supporters, and in a post about that speech on Instagram, Nick Taurus, who’s challenging Rep. Young Kim from the right in the CA-40 race, said he’s not afraid of being labeled a “homophobe” for refusing to “pander” to “alphabet soup people” in the LGBTQ community.
“I don’t want to appeal to homosexual extremists,” he said. “I don’t want to appeal to a variety of people who quite frankly I feel are turning our country upside down.”
Kim, R-La Habra, didn’t respond to a question in late March about how she’d vote on the issue of gay marriage. But in an emailed response, she said, “While I personally oppose same sex marriage, the Supreme Court has ruled that same sex marriage is protected by the constitution. They have made their decision and I respect it.”
Scott Baugh, who’s the primary GOP challenger to Rep. Katie Porter, D-Irvine, also didn’t answer a question about how he’d vote on the legality of gay marriage.
“A yes or no answer is inadequate here,” said Baugh, R-Huntington Beach.
“By tradition, culture and religion, marriage is between a man and a woman,” he continued. But he added this: “The government should have no involvement in regulating relationship contracts and social arrangements between people.”
Rep. Michelle Steel, R-Seal Beach, drew strong criticism from the civil rights community last election cycle after video surfaced in which she told a crowd that she withdrew her daughter from UC Santa Cruz when the daughter started to say, “God gave us two men — what’s wrong with gay marriage?” Steel said she sent the daughter to the Catholic university Loyola Marymount to “brainwash” her for a year.
This time around, Steel also didn’t answer the question about how she’d vote on gay marriage, instead emailing a statement similar to Kim’s in early April.
“I personally believe marriage is between a man and a woman,” Steel wrote. “But I respect the law of the land as the Supreme Court has determined and the issue will not be coming before Congress.”
However, Rick Hasen, a constitutional law scholar and professor at UC Irvine, agreed with Levinson in saying the issue, in fact, could be re-litigated. Hasen said “there’s a good chance that the Supreme Court will have to reconsider” its 2015 ruling on the case Obergefell v. Hodges, which created national protections for gay marriage, if Justice Samuel Alito’s draft opinion on abortion rights ultimately stands.
With that in mind, civil rights advocates are taking a hard look at legislative and other moves that might help safeguard same-sex marriage rights.
“We are currently assessing what the best course of action is,” said Samuel Garrett-Pate with Los Angeles-based Equality California. “Every option is on the table.”
Even if Congress were to pass laws to codify abortion rights or gay marriage into federal law, which seems unlikely given the partisan makeup and stance of the Senate right now, Levinson said there’s a chance the conservative Supreme Court could come back and say such laws are “not a proper use of Congress’ authority.”
“I’m not saying they’d necessarily overturn it. I’m just saying it’s not a done deal that they would uphold it.”
While there are separate protections for gay marriage in California, Garrett-Pate said news of the past week has shown everyone that “we can’t take anything for granted.”
“We’ll ultimately do whatever we need to do to ensure that marriage equality remains the law of the land here in California even if it were to fall nationally,” he said.
Ballots for the June 7 primary election will be mailed to all California voters starting Monday. Visit OCRegister.com/tag/2022-elections for stories on all local races.