Judges, Not Lawmakers: How Prop 3 Will Rewrite the Future of Marriage

Proposition 3, a proposed constitutional amendment on this year’s ballot, seeks to redefine marriage by enshrining “The right to marry is a fundamental right” into the state’s constitution. While this may sound innocuous on the surface, constitutional expert Dean Broyles, president of the National Center for Law and Policy, raises serious concerns about the far-reaching implications of this amendment.

Broyles has warned that the vague and overbroad language of Proposition 3 could open the floodgates to various interpretations of marriage that go far beyond traditional unions between a man and a woman—or even same-sex couples. “The legally operational portion of the proposed constitutional amendment states that ‘The right to marry is a fundamental right.’ This language is very problematic because it is tremendously vague and overbroad,” Broyles explained in a legal letter opposing Proposition 3. “What does it mean? What does it not mean? The ‘marriage’ possibilities are indeed vast and endless and are not by any means limited to same-sex marriage.” His statement serves as a stark warning about the ambiguity of the amendment and its potential to fundamentally alter the institution of marriage as we know it.

Assemblyman Evan Low, the author of ACA 5 (which became Proposition 3), argued in a letter of legislative intent that the proposed constitutional amendment is a necessary step toward equality, ensuring that the right to marry remains secure for all Californians, especially those in same-sex relationships. According to Low, the new language in the state constitution would simply affirm marriage as a fundamental right and would not alter or invalidate existing statutes. He emphasizes that Proposition 3 is not intended to expand marriage to include other configurations such as polygamy or polyamory, claiming that existing California statutes defining marriage would remain intact and unaffected.

However, Broyles firmly disagrees with Low’s assessment. In a direct rebuttal, he states, “There’s no nice way to say this: Evan Low is wrong.” Broyles argues that while the amendment may not explicitly change the statutes, the vague and broad nature of the language used will inevitably lead to judicial reinterpretation of marriage laws, undermining the very statutes Low claims will remain unchanged.

The Role of Judges in Defining Marriage

Broyles goes on to contend that Proposition 3, if passed, would shift the power to define marriage from the legislature to the judiciary. “Indeed, if Proposition 3 prevails, judges, not legislators, will ultimately define what marriage is and is not,” he points out. This concern is not merely theoretical. In a state where judicial activism has a long and storied history, the possibility of judges stretching the definition of marriage in unexpected ways is very real.

Currently, marriage laws are largely determined by elected representatives, who are accountable to the public. Proposition 3 would change that dynamic, allowing unelected judges to make potentially radical decisions about what forms of marriage should be legally recognized. As Broyles notes, “Judges would determine, on a case-by-case basis, whether any particular alternative or novel formulation of wedded bliss will be protected by this new ‘fundamental right’ to marry, even if the specific configuration conflicted or was inconsistent with existing delimiting statutes.”

A World Without Limits?

The most troubling aspect of Proposition 3, according to Broyles, is that it introduces a concept of marriage that could be entirely detached from traditional social and moral standards. “If marriage is a personal ‘fundamental right’ which is individually defined, personal feelings and one’s sense of personal autonomy are the ultimate deciders, and the sky is, in fact, the limit—unless, of course, one or more persons are legally permitted to marry the sky,” Broyles says with a touch of sarcasm to illustrate his point.

The concern is not just academic. Over the past few decades, the legal definition of marriage has changed dramatically. As Broyles notes, “A short 20 years ago, most people believed that same-sex marriage was impossible.” Yet, here we are today, and the rapid evolution of marriage laws in America shows no signs of slowing down. If Proposition 3 passes, the question becomes: What’s next?

Broyles lists a number of “marriage possibilities” that may seem far-fetched today but could become plausible under Proposition 3. These include polyamorous marriages, where three or more people are joined in matrimony, and even marriages between people and non-human entities. While these scenarios may seem improbable, Broyles reminds us that same-sex marriage was once considered just as unlikely. For example, Berkeley and Oakland both passed legal protections for Polyamory earlier this year. 

Chief Justice John Roberts’ Warning

Broyles is not alone in his concerns about the slippery slope Proposition 3 could create. Supreme Court Chief Justice John Roberts, in his dissenting opinion in the landmark case Obergefell v. Hodges, made a similar argument. Roberts noted, “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If ‘[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices’… why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?”

Roberts’ point is clear: if marriage is simply a matter of personal autonomy and dignity, why stop at two people? If Proposition 3 enshrines the “right to marry” as an undefined, fundamental right, it opens the door for plural marriages, polyamory, and other non-traditional arrangements. As Roberts succinctly put it, “If a same-sex couple has the constitutional right to marry because their children would otherwise ‘suffer the stigma of knowing their families are somehow lesser,’… why wouldn’t the same reasoning apply to a family of three or more persons raising children?”

The Cultural and Moral Implications

The passage of Proposition 3 would have consequences far beyond the legal realm. It would send a powerful message about the nature of marriage and the values that underpin our society. For centuries, marriage has been understood as a union between one man and one woman, rooted in the biological realities of procreation and child-rearing. By redefining marriage as a purely individual right, Proposition 3 would sever the connection between marriage and these fundamental purposes.

Broyles warns that marriage in California would become “the public projection of whatever the autonomous individual privately imagines would satisfy his or her pursuit of freedom and happiness.” In other words, marriage would no longer be about building stable families or serving the common good; it would become just another vehicle for personal expression.

Conclusion

As the debate over Proposition 3 continues, it is crucial to consider the long-term consequences of enshrining such vague and broad language into the state constitution. Dean Broyles and Chief Justice John Roberts both raise valid concerns about the slippery slope this amendment could create. While it is framed as a simple affirmation of the right to marry, Proposition 3 fundamentally alters the institution of marriage in ways that Californians may not fully anticipate.