While I was disappointed in the decision yesterday by the California Supreme Court, after reading the decision I’m not really that surprised. In reality the court didn’t have a lot to work with. In California the constitution allows for direct change through initiative and referendum which is what Prop 8 did…essentially changed the California Constitution to prohibit same sex marriage. Unlike the rest of the country, in California and a few other states that have a initiative form of government, the majority rules while with the US as a whole the actual Constitution is the ruling authority. That is why during the civil rights struggle in the 1960’s state laws that enshrined discrimination were overturned based on the U.S. Constitution. Voters in California, for good or for bad, can vote pretty much for anything through a ballot measure and it will be state law. They could vote to say the world is flat and if the majority voted that way it would become state law. The only way to overturn it is to hold another ballot measure to nullify the previous one. And the only way to trump the will of the people in California is for opponents of Prop 8 to bring their fight to the US Supreme Court and argue that the state law denies citizens equal protection under the US Constitution, the document that trumps all state and local laws. And at this point in the game, we don’t have the votes to win in the U.S. Supreme Court (that’s why there have been no cases taken there yet and why this California decision won’t be either).
While it’s disappointing and I can understand people’s frustration, we have to be patient. The worst thing would be to force the issue to the U.S. Supreme Court at this point and lose, which would then set Supreme Court precedent which is extremely difficult to overturn (the Supreme Court doesn’t like to reverse itself and it sometimes takes generations for it to do so). So everyone should just take a breath and wait, because although it didn’t happen yesterday it will happen eventually.