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“Did the Supreme Court’s Gay Marriage Ruling Just Destroy Colorado’s TABOR Law?” said a headline Wednesday on the Colorado MediaTrackers website.

Conservative Denver commentator Joshua Sharf said the 20-year-old constitutional amendment “might be left without defense, and without any party with standing to conduct a defense.” It could be “killed by default,” he said.

In his dissent to the Prop 8 ruling, Justice Anthony M. Kennedy broached the same issue, writing that the majority opinion “has implications for the 26 states that use an initiative or popular referendum system.”

“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,” Mr. Kennedy said.

In an unusual breakdown on the normally ideologically divided court, the centrist Justice Kennedy was joined in his dissent by conservative Justices Samuel Anthony Alito Jr. and Clarence Thomas and liberal Justice Sonia Sotomayor.

More challenges likely

Some constitutional scholars defended Chief Justice Roberts‘ ruling, saying it closely tracked with precedent and that any other decision could have led to enormous practical problems.

“Allowing private individuals to invoke federal court jurisdiction when they disagree with a government’s decision not to defend a law would have vitiated the long-settled [constitutional] requirement that federal court litigants have a direct and particularized interest in the case they pursue,” Columbia University law professor Suzanne Goldberg wrote in a lengthy posting on the popular SCOTUSblog.com website.

“And this, in turn, would have created enormous political problems. Proposition 8’s sponsors — while claiming to be acting in the California government’s stead — were making arguments condemning gay parents that directly contradicted California law and policy,” she wrote.

Coincidentally, the federal Defense of Marriage Act, which the high court struck down Wednesday, was nearly left without a defense after the Obama administration refused to respond to a lawsuit filed against it. Instead, the Republican-dominated House of Representatives provided the funds to pay non-government attorneys to defend the measure.

Such examples of executive-branch cherry-picking are rare, but analysts say they could become more common as a result of Wednesday’s decision.

“Most government officials see it as their obligation to enforce the laws when they take their oath, so it’s unusual,” said Mr. Matsusaka, “but now that we know you can do it, I think we’re going to see more of it.”