We need to know just how far Vice President Kamala Harris will go when, in the next year, the Obergefell decision that legalized same sex marriage under the Fourteenth Amendment faces a very likely reversal by the Trump Court. The five far-right justices who signed the leaked draft decision overturning Roe v. Wade are very likely to reverse Obergefell in the court's next term. At that point, will Harris cave, as she did on Prop. 8 while district attorney in San Francisco?
Democratic presidential candidate Joe Biden's selection of Kamala Harris as his vice presidential running mate, while generally applauded by civil rights advocates, resurrected an old issue that arose when Harris was San Francisco's district attorney. She made a disastrous decision at a crucial moment in the same sex marriage controversy in 2008, allowing early implementation of Prop. 8, thereby denying some Californians their right to legally wed.
On the Wednesday after the statewide election in 2008, with the anti-gay marriage ban well ahead but with millions of ballots uncounted, ten counties stopped issuing marriage licenses to same-sex applicants. Surprisingly, one of those counties was San Francisco, the symbol of non-traditional marriage.
This county's clerk followed the advice of district attorney, Kamala Harris. What motivated the other nine counties is not clear. Their decision, and that of Harris, most likely was based on that state constitution provision that winning propositions take effect "the day after the election." That provision was changed in 2018 so that the election has to be certified before they go into effect.
In 2008 Secretary of State Bowen, however, neither issued a "temporary certification" nor did she alert county clerks to the fact that the election wasn't official until she said so. The chief election official in the state remained silent, and the county clerks had to fend for themselves. In San Francisco, the clerk relied on either the constitution or a decision made by Harris.
As a result, same sex marriages that could have taken place during the 30 days after the election were not allowed. Perhaps thousands of potential weddings were delayed until the U. S. Supreme Court, years later, finally upheld lower court decisions overturning Prop. 8.
Harris should have challenged the state constitution on grounds that perhaps elections were determined by midnight in the horse and buggy era but they now took days to get the results. She didn't.
Harris wasn't alone in misinterpreting the state constitutional clause on implementing winning ballot measures, The state legislative counsel subsequently issued directives that implemented other ballot propositions on the day after the election, most notably the ban on single use bags in 2016.
The day after the election, grocers began collecting that ten cent fee for paper bags, despite the fact that millions of ballots were still uncounted. It was that action, which cost shoppers millions of dollars during that month before the election was certified, that led to the constitutional change in 2018 that stipulates winning ballot measures go into effect only after the election has been certified.
Harris ought to explain her reasoning for not ordering the continuation of gay marriages in 2008 until the election was certified. Until she does, her claim as a civil rights advocate is somewhat clouded.
Within a year, same gender marriage will be up for review in the U. S. Supreme Court. The abortion issue quite naturally came first and the 5-4 ultra conservative majority has apparently struck it down, bowing to the demands of southern states and Republicans everywhere. But the Obergefell decision that legalized same sex marriage nationwide will also be overturned with a 5-4 split among the justices.
When Obergefell is overturned, Prop. 8 will be the law in California and same sex marriage will again be banned. It will take a statewide vote to overturn it, and the votes weren't there in 2008.
What will the Biden-Harris administration do at that point? Harris failed to challenge an obviously illegal action in instituting Prop. 8 immediately in 2008. Will she bend to the will of the Supreme Court in reversing the meaning of the Fourteenth Amendment as found by an earlier court in that 5-4 decision?
It may take congressional action to create a reversal by enlarging the membership of what is now a Trump-packed court. Harris and Biden will have to twist a lot of Democratic senators arms to achieve that, as they will be reluctant to face a "pack the court" issue themselves.
But the future of civil rights in this country demands a presidential administration that has the guts to lead. Harris, in 2008, didn't lead. She acquiesced and the LGBTQ community paid the price.