Some defenders of the California Supreme Court's same-sex marriage decision have argued that it's actually consistent with the democratic process, because the California legislature had twice enacted same-sex marriage, and the Governor vetoed the bills on the grounds that the California Supreme Court should decide the matter. I heard this from another panelist on a KQED-FM radio show I was just on; you can also see something similar at Lawyers, Guns and Money, and elsewhere.
I think it's a mistake to ascribe much significance to these vetoed bills. Under California law, the California Legislature has no authority to by itself reverse -- even with the Governor's approval -- an initiative statute, such as the California ban on same-sex marriage (enacted in 2000); reversing such an initiative statute through the legislative process requires a subsequent popular vote. The legislature may at most place the amendment on the ballot.
Now if the California Supreme Court is right that the initiative statute violates the California Constitution, then only a state constitutional amendment (which will likely be on the November ballot) can change that. But there's no doubt that it is the Court that made this decision, overturning the 61.4%-38.6% 2000 vote on the matter. It is that 2000 vote that's the only authoritative non-judicial statement on the matter. The Legislature had no power to itself change this statement, even had the Governor cooperated.
Incidentally, my sense is that this explains the Governor's veto statement that he wanted to see the Court's views on the matter: If the Court had concluded that the 2000 initiative statute was constitutionally permissible, then the Legislature and the Governor would have had no power to simply enact same-sex marriage; they would have had to do so through a statute that called for a popular vote on the subject.
Related Posts (on one page):
- The Countermajoritarian Difficulty as to State Constitutions vs. the Federal Constitution:
- The California Legislature's Enactment of Same-Sex Marriage:
- "Did the California Supreme Court Just Do John McCain an Inadvertent Favor?"
- Congratulations to California Same-Sex Married Couples:
- The Slippery Slope to Same-Sex Marriage:
- California Supreme Court Holds That California Must Recognize Same-Sex Marriage: