Gay marriage and the ballot initiative

After the California State Supreme Court decided yesterday that the state had to allow same-sex marriages, opponents immediately filed their ballot proposal to amend the state constitution. But from my conversations with San Diegans yesterday and today, people seem very confused about the difference between an initiative that creates an amendment and an initiative that creates a law. So I called the California Secretary of State’s office to get it all straightened out.

First, understand that there is a big difference between an initiative that creates a new law and an initiative that amends the California constitution. If voters were o approve a law that limited the definition of marriage to one man and one woman, the court could overturn that law. That was what the court did yesterday: decide that a ban on same-sex marriage is unconstitutional.

But an amendment to the state constitution limiting the definition of marriage would invalidate yesterday’s court decision. The only law higher than the state constitution is federal law—and, in particular, the U.S. Constitution. So if an amendment to the state constitution is passed, same-sex marriage will once again be forbidden, though civil unions would still be legal. The only way an amendment to the state constitution could be overturned is if the U.S. Supreme Court rules against it, or if Congress passed a law and the president signed it.

Procedurally, the main difference is in qualifying for the ballot. Getting a new law on the ballot requires the signatures of 5 percent of the number of people who voted in the last gubernatorial election, which right now would be about 433,000. Getting a constitutional amendment on the ballot requires 8 percent, which would be 694,000 signatures. The coalition that’s trying to get the anti-gay marriage initiative on the ballot for November says they have 1.1 million signatures. Even if a great many of them are invalidated upon review, the amendment is likely to qualify.

Once it’s on the ballot, the amendment, just like any other initiative, needs a simple majority of votes to become law. The last time Californians considered an anti-gay marriage measure, in 2000, some 60 percent of voters were against same-sex marriage.

Several factors could create different results this time. Democrats, who are traditionally friendlier to gay-rights issues than Republicans, voted in record numbers in March’s presidential primary. Gov. Arnold Schwarzenegger, who was not yet in office in 2000, will not be supporting a constitutional amendment, and he may even work against it. And, frankly, it’s eight years later. Homosexuality has simply become more of a commonplace part of American culture. Massachusetts has allowed gay marriage for four years now. Also, it seems that people are far more worried about the price of gas than they are about whether two women are in a civil union or if they’re married.