On Election Day, California’s voters approved Proposition 8, an initiative amending the state constitution to overturn the California Supreme Court’s decision recognizing same-sex marriage. The Proposition was approved by about 53 percent to 47 percent of those voting.
Initially, it strikes many people as incongruous to have a majority vote on people’s rights. When we are thinking about federal constitutional law, this is correct, because it is virtually impossible to amend the federal constitution to overturn a decision of the U.S. Supreme Court. But, Proposition 8 concerned the state constitution. State constitutions in forty-nine out the fifty states (Delaware is the exception) owe their effectiveness to votes of the people, both for their original adoption and amendment. Thus, in fact, it is quite common for the people of the states to vote on changes to their state constitution, including those changes that add to, or subtract from, rights under the state constitution. A number of states like California permit the use of the initiative to propose amendments to the state constitution.
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