Gee, as if Democrats in California needed any more power. The Supreme Court's punt on Proposition 8—a state ballot initiative banning same-sex marriage that voters approved in 2008—effectively gives Gov. Jerry Brown and Attorney General Kamala Harris a veto on litigated laws that have been propounded and passed by the people of California.
Recall that both Mr. Brown and Ms. Harris declined to defend the initiative against a challenge in federal courts. Thus, the initiative's proponents took on the job, as permitted by the California Supreme Court. However, an ideologically mixed majority on the court (which included Chief Justice John Roberts and Justices Elena Kagan, Stephen Breyer, Antonin Scalia, and Ruth Bader Ginsburg) has ruled that they lacked standing to do so.
"Once the District Court issued its order," which was to strike down Prop. 8, "respondents no longer had any injury to redress, and the state officials chose not to appeal. The only individuals who sought to appeal were petitioners, who had intervened in the District Court, but they had not been ordered to do or refrain from doing anything," wrote the chief justice for the majority. Thus, the lower court's decision holds.
Many Californians are no doubt celebrating the decision. Public opinion has swung sharply in favor of same-sex marriage since a bare 51% majority of voters approved the ban five years ago. However, the decision is a huge blow to the principle of popular sovereignty, which underlies California's initiative process.
California's initiative system originated in 1911 to bypass entrenched and often unaccountable state politicians. As Justice Anthony Kennedy points out in his dissent (joined by Justices Clarence Thomas, Samuel Alito, and Sonia Sotomayor), "the initiative system 'grew out of dissatisfaction with the then governing public officials and a widespread belief that the people had lost control of the political process.'"
As the California Supreme Court has determined, "this purpose is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding . . . Giving the Governor and attorney general this de facto veto will erode one of the cornerstones of the State's governmental structure.
"And in light of the frequency with which initiatives' opponents resort to litigation"—over one-third of the initiatives approved in Arizona, California, Colorado, Oregon, and Washington between 1900 and 2008 were challenged in court—"the impact of that veto could be substantial."
The court's ruling means that state officials and a single district court will be able to nullify initiatives on every thing from school choice to tax reform. The danger is particularly acute in California, where federal courts with jurisdiction are notoriously liberal, though the implications extend to any of the 26 other states with an initiative or popular referendum system.
Liberals may rejoice now, but perhaps they should consider the flip side: a Republican governor and attorney general who refuse to defend, say, an environmental initiative which is struck down by a federal court. Liberal proponents would no doubt want to appeal, but by the court's reasoning they couldn't.
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Originally Posted by Applejack
