Friday, June 28, 2013

How Concerned Should Ballot Initiative Lovers Be About the Prop. 8 Punt?

Please space out the weddings so your friends don't go broke buying giftsHow Concerned Should Ballot Initiative Lovers Be About the Prop. 8 Punt?:
In a 5-4 split that put the
Supreme Court justices together in an unexpected combination
(Roberts, Scalia, Ginsberg, Breyer and Kagan against Kennedy,
Thomas, Alito and Sotomayor), the court determined yesterday that
the proponents of California’s Proposition 8 did not have standing
to defend the constitutionality of the amendment banning
recognition of gay marriage.
It’s an unusual case because California’s governor and attorney
general refused to defend the proposition once it was challenged.
The state allowed the private proponents of Proposition 8 to defend
it in court, but it was struck down by the U.S. District Court of
Northern California, a decision that was upheld by the Ninth
Circuit Court of Appeals.
Here’s how SCOTUSblog summarized the
Hollingsworth v. Perry decision:
The challenge to the constitutionality of California’s
Proposition 8, which bans same-sex marriage: After the two same-sex
couples filed their challenge to Proposition 8 in federal court in
California, the California government officials who would normally
have defended the law in court, declined to do so. So the
proponents of Proposition 8 stepped in to defend the law, and the
California Supreme Court (in response to a request by the lower
court) ruled that they could do so under state law. But today the
Supreme Court held that the proponents do not have the legal right
to defend the law in court. As a result, it held, the decision by
the U.S. Court of Appeals for the Ninth Circuit, the intermediate
appellate court, has no legal force, and it sent the case back to
that court with instructions for it to dismiss the case.
In response to the ruling, I’ve read people worried this
decision would make it easier for elected officials to shut down
reforms caused by ballot initiatives simply by refusing to enforce
or defend them and leaving proponents with no alternative. Justice
Anthony Kennedy worried as much in his dissent:
The Court’s reasoning does not take into account the fundamental
principles or the practical dynamics of the initiative system in
California, which uses this mechanism to control and to bypass
public officials—the same officials who would not defend the
initiative, an injury the Court now leaves unremedied. The Court’s
decision also has implications for the 26 other States that use an
initiative or popular referendum system and which, like California,
may choose to have initiative proponents stand in for the State
when public officials decline to defend an initiative in
litigation. …
“There is much irony in the Court’s approach to justiciability
in this case. A prime purpose of justiciability is to ensure
vigorous advocacy, yet the Court insists upon litigation conducted
by state officials whose preference is to lose the case. The
doctrine is meant to ensure that courts are responsible and
constrained in their power, but the Court’s opinion today means
that a single district court can make a decision with far-reaching
effects that cannot be reviewed. And rather than honor the
principle that justiciability exists to allow disputes of public
policy to be resolved by the political process rather than the
courts, here the Court refuses to allow a State’s authorized
representatives to defend the outcome of a democratic
So should we be worried? Could the reverse – voters approve gay
marriage recognition only to have the state refuse to back it –
happen? What if the voters approved term limits for state
legislators and they just ignored it?
The majority decision was not unsympathetic to the argument
(incidentally, it’s interesting to see how polite these arguments
are when you end up with such an unusual combination of justices on
each side) but firm in that: 1) Getting a ballot initiative passed
does not make you an agent of the state with standing; and 2) If
you aren’t an agent of the state who is expected to defend the law,
then you have to have proof of a personal harm and the proponents
do not. Arguably, if the situation were reversed (the state
refusing to defend an initiative recognizing gay marriage), it’s
easy to see how they could allow standing and the outcry that would
cause. A person denied a marriage license from a same-sex ballot
initiative may be able to prove harms from discriminatory policies
and earn standing. But that’s a fight for another day – The Supreme
declined today
to take up some additional gay marriage lawsuits
for the next session.
You can decide for yourself how concerned you should be about
the ballot initiative process by reading Hollingsworth v.