Supreme Court gay marriage ruling raises questions for California initiative process

jwhite@sacbee.comJune 27, 2013 

Who can defend an orphaned ballot initiative?

The question gained resonance Wednesday after the U.S. Supreme Court ruled that proponents of Proposition 8, California's voter-approved ban on same-sex marriage, had no standing to pursue their appeal once California officials declined to defend the embattled law.

The decision spurred questions about the legal recourse available to supporters of ballot measures state officials decide to abandon.

It especially troubles critics who worry politicians could quietly condemn voter-approved measures by refusing to defend them in federal court.

"It leaves the backers of the initiative and the voters subject to the whims of the elected officials," said Harold Johnson, an attorney with the Pacific Legal Foundation, "and that undermines the whole purpose of the initiative system, which is to empower people to go around the politicians and make the laws themselves."

The Supreme Court's ruling preserved a 2010 decision by U.S. District Judge Vaughn Walker striking down Proposition 8. It also vindicated the decision by then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown not to defend Proposition 8 in court.

In their absence, the initiative's sponsors stepped in to challenge Walker's decision.

The case made its way to the U.S. Supreme Court. There, rather than weigh the constitutional merits of Proposition 8, the justices ruled that proponents could not shoulder California's forfeited role as the measure's advocate.

Key to the court's interpretation is the legal doctrine that, to have standing, parties in a case must have suffered some tangible consequences - "injury," in legal parlance.

The same-sex couples who initially sued to overturn Proposition 8 fit that definition, the Supreme Court's majority opinion said, but the law's authors don't: The court "had not ordered them to do or refrain from doing anything."

Proponents had a special role in the initiative becoming law. But when it came to enforcing that law, the justices said, the ballot measure's architects had as much of an interest as any other residents of California. In this case, that was not enough.

"People can put whatever they want on the ballot, laws can still get passed and the constitution can still get amended," said David Carrillo, executive director of the California Constitution Center at UC Berkeley. "What the Proposition 8 ruling means is there's going to be a much sharper question about who has standing to attack or defend a law."

In a dissenting opinion, Justice Anthony Kennedy - who was raised in Sacramento - argued that his colleagues had ignored "the fundamental principles or the practical dynamics of the initiative system in California" by muffling the collective voice of California's voters.

"The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around," Kennedy wrote. "Freedom resides first in the people without need of a grant from government."

A similar rebuke came from Sen. Jim Nielsen, R-Gerber, who told The Bee that the Supreme Court's decision "overrides states rights."

Nielsen said the U.S. Supreme Court, with the help of California elected officials, defied the will of California voters who approved Proposition 8 by a resounding margin.

"The top elected officials in the state of California willfully, knowingly refused to defend the position of the people of the state of California," Nielsen said. "That's a very unfortunate precedent, and the people of California should be concerned about that."

At a Thursday news conference, Brown said the unique nature of the Proposition 8 case, which supporters have cast as a civil rights landmark, justified California officials stepping aside.

"I think this case is, if I can invoke a Latin phrase, 'sui generis,' " Brown said. "That means of its own kind or nature - very, very unlikely to occur again."

But same-sex marriage isn't the only issue where Brown has aligned himself with opponents of a successful ballot initiative.

In 2011, the governor filed a brief siding with the plaintiffs suing California officials over Proposition 209, which prohibits racial preferences in hiring and university admissions.

The Pacific Legal Foundation argued for the law instead. While the 9th U.S. Circuit Court of Appeals upheld the constitutionality of Proposition 209, Johnson said that outcome takes on a new significance with the U.S. Supreme Court's Proposition 8 decision.

"This is a problem that's already reared its head, this problem of elected officials basically trying to veto initiatives by not defending them in federal court," Johnson said.

Jon Coupal, president of the Howard Jarvis Taxpayers Association, suggested it might be time for a ballot initiative that would preserve the right of initiative sponsors to combat legal challenges.

He stressed that the idea is still tentative, but said he has run it by other organizations who, regardless of their ideological perspective, have a stake.

"It's not just conservative groups that I think are going to be very concerned about this," Coupal said. "It is incumbent on all the advocacy groups across the political spectrum to see if we want to address this."

One such group is California Common Cause, a government transparency watchdog that spearheaded Proposition 11, the 2008 ballot initiative to overhaul California's redistricting laws. Phillip Ung, a spokesman for the group, said they were weighing how to respond to the Supreme Court's action.

"I think it's safe to say that every proponent for a ballot measure in this state is looking to react," Ung said.

"What's at stake is all of our work," he added. "We spend a lot of time, a lot of money and a lot of resources to get something passed, but if the (attorney general) and the governor and the Legislature decide they don't like a reform that Common Cause supports they can decide not to defend it, and that's really the worry."

Call Jeremy B. White, Bee Capitol Bureau, (916) 326-5543. Follow him on Twitter @CapitolAlert.

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