Joe Biden’s selection of Kamala Harris as his vice presidential running mate, and her subsequent nomination at the Democratic national convention, was generally applauded by civil rights activists, Typical of that praise was an Aug. 19 op-ed by Sasha Issenberg in the Washington Post, “”Joe Biden and Kamala Harris Both Worked For Gay Marriage – In Different Ways.” But that view of Harris’ support for same sex marriage resurrects an old issue that arose when she was San Francisco’s district attorney. Harris made a disastrous decision at a crucial moment in the gay marriage controversy, ordering early implementation of Prop. 8, which banned same sex marriage in California, Her early implementation denied some Californians their right to legally wed.
Issenberg correctly notes that Harris had actively opposed Prop. 8 prior to the November, 2008, statewide election. She was joined by other prominent Democrats, including Jerry Brown, then state attorney general, The anti-Prop. 8 vote came largely from Democrats while the yes vote came from Republicans and socially conservative Democrats.. The final tally, which was not certified for several weeks after the election, found the ballot measure winning with 7 million Yes votes while the No vote was 6.4 million.
On the Wednesday after the election, 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. That 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 constitutional provision that winning propositions take effect “the day after the election.” But the constitution also said that they must have a majority of the ballots, which was impossible with those millions still uncounted. The election wasn’t over until certified by the Secretary of State.
Secretary of State Debra Bowen, who took nearly a month to certify the vote, 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 the 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, in 2013, finally upheld lower court decisions overturning Prop. 8.
It was Harris’ role as state attorney general, in which she refused to defend Prop. 8 when it was challenged in court, that the writer of the Post op-ed cites as justification for her role as a defender of same sex marriage. Her predecessor as attorney general, Jerry Brown, had also chosen not to defend what was now a state law banning such marriages, setting a precedent for Harris. When the promoters of Prop. 8 attempted to defend the law in legal proceedings, lower federal courts and the Supreme Court ruled that they had no standing and the law was overturned as a violation of due process and equal protection clauses of the Fourteenth Amendment.
Harris was not 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 stopping gay marriages in 2008. Until she does, her claim as a civil rights advocate is somewhat clouded