- The Washington Times - Sunday, June 30, 2013

DENVER — The Supreme Court’s decision Wednesday on Proposition 8 unlocked the door for same-sex marriage in California but also may have stifled the voices of the state’s voters.

In its 5-4 decision, the high court ruled that the private group behind the citizen-initiated measure on the November 2008 ballot had no standing to defend Proposition 8 in federal court, even after California Gov. Jerry Brown and state officials refused to do so.

The ruling on standing, while seemingly technical, has alarmed critics on both ends of the political spectrum, who worry that the decision effectively gives state officials the unchecked power to nullify ballot initiatives they dislike by refusing to enforce them or defend them in court.

“I think regardless of what anybody thinks about same-sex marriage, everyone who cares about democracy should be concerned about this decision,” said John Matsusaka, president of the Initiative and Referendum Institute at the University of Southern California. “It’s fundamentally undemocratic.”

The national revolt against higher taxes arguably began with a California citizen initiative: Howard Jarvis’ Proposition 13 in 1978. Over the years, the state’s voters have weighed in on such hot-button issues as term limits, bilingual education, affirmative action, medical marijuana, punishment for crimes, government debt and, in 2008, same-sex marriage.

But the Supreme Court, in a 5-4 decision written by Chief Justice John G. Roberts Jr., essentially held that those who draft, finance and campaign for the initiatives can’t get into the courtroom to defend their handiwork.

“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” Chief Justice Roberts said in the majority opinion. “We decline to do so for the first time here.”

Most of the criticism of the court’s ruling on standing has come from conservative analysts such as Ryan T. Anderson, senior fellow at the Heritage Foundation, who said the decision “sets a disturbing precedent.”

“It would allow the executive branch to effectively veto any duly enacted law simply by refusing to defend it against a constitutional challenge,” Mr. Anderson said.

Conservative activists traditionally have used the ballot measure to greater effect than liberals, but left-wing political blogger Kevin Drum of Mother Jones agreed that the decision “has neither the flavor of justice nor of democratic governance, regardless of whether I like the outcome.”

“In cases like these, of course the governor and legislature are going to decline to defend the law in court,” Mr. Drum said in a post last week. The high court is “basically gutting the people’s right to pass initiatives that elected officials don’t like and then to defend them all the way to the highest court in the land.”

State voter powers

About half the states allow citizen ballot initiatives and popular referendums, and all states have mechanisms for their legislatures to refer issues to the ballot. The initiative typically is used “when elected representatives don’t do what the people want,” Mr. Matsusaka said.

Under the Supreme Court’s ruling, however, any ballot measure passed by state voters can be rendered moot by a lawsuit combined with an unsympathetic state attorney general.

In Colorado, for example, conservatives immediately connected the dots to the state’s Taxpayer Bill of Rights, a 1992 initiative that requires voters to approve tax increases. If Democrats in the blue-trending state are able to replace term-limited Attorney General John Suthers, a Republican, with one from their own party next year, the Taxpayer Bill of Rights could be eliminated.

“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.”

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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