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Perry Ruling Spells Peril for States

Friday, July 12, 2013

The Supreme Court’s decision in Hollingsworth v. Perry successfully dodged the bullet of a same-sex marriage ruling, but it also placed the democratic initiative process in peril.

The Supreme Court’s recent ruling in Hollingsworth v. Perry — in which the Justices let stand a lower-court ruling paving the way for same-sex marriage to proceed in California but declined to find a constitutional right to gay marriage — was essentially a mixed bag for same-sex marriage supporters and opponents.

In an effort to avoid wading into the merits of the core constitutional questions at issue in the same-sex marriage debate, the Supreme Court, by a 5-4 margin, dodged the bullet by holding that the proponents of California’s Proposition 8 lacked “standing” to present their case. But the Court’s ruling on standing could prove deeply corrosive of a key democratic right: the ability of citizens of 27 states to enact and enforce legislation through the initiative process.

The story begins in 2008, when California voters passed, by a 52 to 48 percent margin, Proposition 8, which amended the California constitution to state that “only marriage between a man and a woman is valid or recognized in California.” The initiative’s passage halted same-sex marriages in California, which had been legal for several months.

Opponents of the proposition promptly challenged the ruling before a federal district court judge, who, after a high-profile and controversial trial, entered an injunction prohibiting the state from implementing Proposition 8 and effectively reopened the door to gay marriage in the Golden State.  During that trial, the State of California nominally defended Proposition 8, but, because the responsible state officials — the governor and attorney general among them — favored gay marriage rights, they ceded responsibility to the official proponents of the initiative.

Those proponents then appealed the case to the Ninth Circuit Court of Appeals, and at that point, the state officials disappeared entirely. The Ninth Circuit, at a bit of a loss about how to consider the constitutionality of a state law whose supposed enforcers had abandoned it, asked the California Supreme Court for guidance as to whether Proposition 8 backers — private citizens — could “defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

The citizens of 27 states have made the sovereign determination to reserve for themselves the right to enact legislation directly, and it’s not the place of the federal government, through its courts or otherwise, to chip away at that determination.

In turn, the California Supreme Court held that the proponents were in fact “authorized under California law to appear and assert the state’s interest in the initiative’s validity.” The Ninth Circuit then upheld the district court’s ruling that Proposition 8 was unconstitutional, and the initiative’s backers appealed the case to the Supreme Court.

And there, late in June, Chief Justice Roberts closed the door one final time, holding along with four other justices that because the measure’s backers “have no role — special or otherwise — in the enforcement of Proposition 8” they lacked the “particularized interest sufficient to create a case or controversy,” as required by the Constitution’s standing provision. Notwithstanding the California Supreme Court’s ruling that Proposition 8 proponents did have standing, the Chief Justice and his brethren found that the measure’s supporters “answer to no one; they decide for themselves, with no review, what arguments to make and how to make them,” and therefore could not assert the authority of the state.

And so it was that Proposition 8 withered on the vine, as the State of California decided not to defend the initiative while the U.S. Supreme Court held that its supporters could not defend it.

Before engaging the heart of this issue, permit me a bit of throat-clearing: on balance, the Court reached the best possible result, legally and politically speaking, by dismissing Perry. The United States is not ready for the Supreme Court to articulate a constitutional right to same-sex marriage, but neither is it ready for the Court to overrule a lower court’s decision to strike down a gay marriage ban, especially in a state like California where popular views have shifted markedly in favor of same-sex marriage in the past five years.

The Initiative Process

This Catch-22 raises serious concerns about the democratic process, as it confers upon state officials an effective veto of any popular ballot measure they simply dislike, which in turn undermines the very principle of direct democracy embodied in the initiative process. Citizens in the 27 referendum states have assigned to themselves, via their state constitutions, the right and responsibility of bypassing feckless state officials by legislating themselves when their representatives cannot, or will not, act.

As Justice Anthony Kennedy — joined by an unusual group of conservative Justices Clarence Thomas and Samuel Alito, along with liberal Justice Sonia Sotomayor — wrote in a blistering dissent:

The California Supreme Court has determined that 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, the impact of that veto could be substantial.

Justice Kennedy noted that 185 of the 455 popular initiatives approved by voters in Arizona, California, Colorado, Oregon, and Washington between 1900 and 2008 were challenged in court.  Without the ability to defend these initiatives in court, citizens do not meaningfully enjoy the right to enact them in the first place. “The Court’s decision,” said the dissent, “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.”

One possible rejoinder: popular democracy is silly, initiatives are unworkable, citizens should trust the officials they have elected to represent them, and in any event, citizens can vote the bums out of office or recall them if they thwart the popular will.

Justice Kennedy noted that 185 of the 455 popular initiatives approved by voters in Arizona, California, Colorado, Oregon, and Washington between 1900 and 2008 were challenged in court. Without the ability to defend these initiatives in court, citizens do not meaningfully enjoy the right to enact them in the first place.

Yet this response misses the mark. First, the citizens of 27 states have made the sovereign determination to reserve for themselves the right to enact legislation directly, and it’s not the place of the federal government, through its courts or otherwise, to chip away at that determination. As Justice Kennedy put it, “the very object of the initiative system is to establish a lawmaking process that does not depend upon state officials. In California, the popular initiative is necessary to implement ‘the theory that all power of government ultimately resides in the people.’” 

Indeed, the dissent went on to say, “the right to adopt initiatives has been described by the California courts as ‘one of the most precious rights of [the State’s] democratic process.’ That historic role for 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.’ The initiative’s ‘primary purpose,’ then, ‘was to afford the people the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt.’”

Critics of the initiative process — warts and all — ignore the fundamental democratic point that the power of elected officials derives solely from the people they represent. Justice Kennedy, again, states this principle with elegance:

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. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century.… In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves.

Moreover, arguing that citizens can simply vote the bums out, or recall them, strains credulity. True, we expect our officials to exercise their discretion and represent our interest in true Burkean fashion, not merely as automatons who respond to polls. But when it comes to popular initiatives, where citizens have specifically bypassed (and even, at times, overruled) our representatives’ discretion, then we should expect officials to behave almost robotically and give effect to our legally and politically legitimate electoral choices. Plus, recalling officials in most states is a last resort and can be undertaken only with great difficulty and much expense.

Others may argue that the case wound up in federal court, and that federal judges should therefore apply federal legal standards to standing issues. However, without broaching the thorny legal and often metaphysical issues involved in the interpretation of state and federal procedural and substantive law, in this case, the very essence of the state initiative is at stake, and federal courts should show deference to the states enacting those initiatives. As the dissent argued, “It is for California, not this Court, to determine whether and to what extent the Elections Code provisions are instructive and relevant in determining the authority of proponents to assert the State’s interest in post-enactment judicial proceedings.”

Indeed, when federal courts take up the constitutionality of a state statute, someone in the state must advocate in favor of the provision. As Justice Kennedy wrote, “if a federal court must rule on a constitutional point that either confirms or rejects the will of the people expressed in an initiative, that is when it is most necessary, not least necessary, to insist on rules that ensure the most committed and vigorous adversary arguments to inform the rulings of the courts.”

Yet others might contend that, sure, the initiative process is a decent system, but not when the referendum in question seeks to take away fundamental rights from a particular group. But whether or not this accurately describes Proposition 8 is precisely a matter for the courts to decide, and state officials should not themselves be making the unilateral decision about whether a given ballot measure passes constitutional muster.

Empowering Proponents of Ballot Measures

Finally, some may argue that state officials, with limited budgets, need to prioritize spending restraint, and defending an initiative, appealing a defeat, and petitioning the Supreme Court for relief may prove futile and costly. In the case of Proposition 8, however, state officials effectively surrendered before the district court case had even begun in earnest.

Instead, elected representatives should be required to defend the constitutionality of duly enacted popular initiatives at least to completion at the trial court level. As explained above, when it comes to popular ballot measures, state officials exist solely to give effect to the will of the people, whether or not those representatives share the same outlook.

It may be reasonable for elected representatives to abandon “lost-cause” cases at the appellate level. In such a scenario, though, those officials must be permitted to empower proponents of the ballot measure — who will fund the legal case on their own dime — as the official agents of the state for purposes of defending the integrity of the initiative.

Given budgetary constraints, however, it may be reasonable for elected representatives to abandon “lost cause” cases at the appellate level, assuming they can objectively conclude, using their best legal judgment, that an appeal would be futile, without reference to the merits of the issue. In such a scenario, though, those officials must be permitted, as a matter of state and federal law, to empower proponents of the ballot measure — who will fund the legal case on their own dime — as the official agents of the state for purposes of defending the integrity of the initiative.

While these proponents will invariably be private citizens, they would effectively be deputized by the state to take up the case as state actors, provided that they can be assigned a “particularized interest” in the measure within the meaning of federal law. As Justice Kennedy wrote:

As a class, official proponents are a small, identifiable group… Because many of their decisions must be unanimous, they are necessarily few in number. Their identities are public. Their commitment is substantial. They know and understand the purpose and operation of the proposed law, an important requisite in defending initiatives on complex matters such as taxation and insurance. Having gone to great lengths to convince voters to enact an initiative, they have a stake in the outcome and the necessary commitment to provide zealous advocacy. Thus, in California, proponents play a “unique role . . . in the initiative process.” They “have a unique relationship to the voter-approved measure that makes them especially likely to be reliable and vigorous advocates for the measure and to be so viewed by those whose votes secured the initiative’s enactment into law.

Thus, to ensure a proper deputization process, Congress should carefully craft standing legislation that can withstand constitutional scrutiny, and the courts should honor it, just as they should honor state sovereignty in these weighty matters. Otherwise, the integrity of the state initiative process — a bold, mostly successful experiment in direct democracy — will be threatened.

Michael M. Rosen, a contributor to The American, is an attorney and writer in San Diego. You can email the author at

FURTHER READING: Rosen also writes “A Roundup: Myriad, Monsanto, and the Supreme Court,” “The Constitution, in Text and Spirit,” and “Could California Make a Comeback?” John Yoo says “Jerry Brown Wins.” Howard Slugh says “Obama Flunks Con Law,” while James V. DeLong details the “Supreme Climate Folly.” Andrew Rugg analyzes “Obama’s Gay Marriage Gamble.” Michael Greve blogs “Will the Supreme Court Enforce the Structure of the Constitution Any Time Soon? Not Likely,” as Ramesh Ponnuru says “The Supreme Court Must Remember What Deference Means.”

Image by Dianna Ingram/Bergman Group

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