The "Governator" And Gay Marriage

California is almost unique in that it has a proposition system.

Massachusetts has the same system -- and the Attorney-General there has just decided that an anti-gay marriage proposition qualifies for the ballot. This could mean the end of gay marriage in that state.

And because Californians recently approved a proposition that defined marriage as the union of one man and one woman, California Governor Arnold Schwarzenegger has decided to veto a controversial bill passed by both houses of the state legislature legalizing same-sex marriage. According to his spokeman, the matter is for the courts to decide.

Some complain that it is inconsistent to for conservatives who say that judicial activism should be discouraged to support Gov. Schwarzenegger's decision.

But such would not be inconsistent if one posits the following possible hierarchy relative to the determination of the propriety of same-sex marriage (excluding for the purposes of this consideration any federal effect, reaction or intervention other than through the federal judiciary).

1. Federal court constitutional review of the propriety of a particular proposition or State decisional or statutory law exclusive of any constitutionally permissible State decision of policy;

2. State court constitutional review of the propriety of a particular proposition or State law exclusive of any determination of constitutionally permissible propositional or statutory determination of public policy, provided that the propositional or statutory determination of public policy does not violate constitutionally enshrined public policy;

3. State propositions (a binding plebescite involving the direct vote of the people), in States that have this mechanism;

4./5. State court determination of the propriety of a particular law inclusive of a determination of constitutionality, the interpretation of law, and the intent of the legislature but exclusive of any determination of policy;

5./4. Legislative determination of policy through passage of statutory law. In the above, the third level is highlighted for its relevance.

Because (4) and (5) often over-rule each other, the two are alternatively numbered. This over-ruling occurs thusly: Either the legislature determines to pass a law reversing the effect of a prior State court ruling, or the state court determines that the legislature's acts are either unconstitutional or violative of constitutionally enshrined public policy. On some occasions, the legislature may attempt to reverse the effect of California Supreme Court or intermediate appellate decisions by passing further legislation; however, it is generally the case that where such decisions are based on constitutional grounds, the legislature defers to the judiciary.

(Note: The above is a general description only and may not obtain in all or even the majority of cases.)