On May 15, the California Supreme Court ruled that the state may no longer exclude same-sex couples from marriage. But anti-gay forces have gotten enough signatures to put on the November ballot an initiative that would amend the state Constitution and overrule the decision. I’ve been getting a lot of questions about the initiative in California, so I decided to put together some of the most common with my answers. Hope you find this helpful.
Do voters have the power to overrule the courts on what the Constitution means?
Yes, on the meaning of the state Constitution. The California Supreme Court ruled that excluding same-sex couples from marriage violated the California State Constitution. (Most of the time, when we talk about “the Constitution,” we mean the United States Constitution, the document that created the federal government. But every state has its own constitution.) The California Constitution specifically allows voters to change it by a simple majority vote (not every state allows that). If the voters change the constitution to say that marriages can only be between a man and woman, that will most likely be read as modifying the more general “equal protection” and “due process” sections of the California Constitution that were the basis of the Court’s decision.
Why did the Court base its decision on the California Constitution and not the United States Constitution?
So that it, and not the U.S. Supreme Court, would have the last word. If the Court had ruled that the United States Constitution did not allow same-sex couples to be excluded from marriage, voters would not be able to overrule the decision. An amendment to the U.S. Constitution has to be passed by two-thirds of both houses of Congress and ratified by three-fourths of the state legislatures. But a decision based on the U.S. Constitution could be appealed to the U.S. Supreme Court. A decision based on the California Constitution cannot, because a state Supreme Court has final say on the meaning of a state constitution.
Because the U.S. Supreme Court has been taking a pretty narrow view of civil rights, we asked the California Supreme Court to consider only the California Constitution.
How can we save the Court’s decision?
We can win the election. The polls say it’s possible. The Field poll (PDF), the best poll in California, says we’re ahead. If LGBT people do these three things, we’ll win: