Lasting Effects of the Supreme Court’s Prop 8 Decision

Stephanie Rugolo is the editor of The Rugolo Report and holds an M.A. from the Maxwell School of Syracuse University.

A strange thing happened in the Supreme Court’s recentHollingsworth v. Perry decision. Even though this case focused on California’s Proposition 8 that banned gay marriage, the court was split, with both liberals and conservatives comprising the majority and dissenting parties. It turns out that the rationale by which the Court’s majority decided the Hollingsworth case led to the justices’ scrambled ideological divisions. The Court’s reason for striking down Prop 8 limits civilians’ ability to legally defend initiatives, a disturbing limit to democratic liberties.

Proposition 8 was a citizens’ initiative passed in 2008 elections. A citizens’ initiative is unlike most laws passed by elected legislatures. Instead, these laws are initiatives of the citizens—that is, they are the result of independent citizens gaining enough signatures to get a proposed law on the ballot.

When gay couples brought a suit against Prop 8 that found the law unconstitutional, the State of California had no intention of appealing the decision. After all, neither the former nor current Californian administrations passed it in the first place, as it was a citizens’ initiative. Consequently, individual proponents of Prop 8 volunteered to appeal the decision in court. That raised questions of standing—whether Prop 8 supporters had a tangible stake in the case and thus a right to appeal. The Ninth Court found they did have standing before finding Prop 8 unconstitutional.

A majority of the U.S. Supreme Court—Chief Justice Roberts, joined by fellow conservative Scalia and liberal justices Kagan, Breyer, and Ginsburg—took the opposite view. They held the Prop 8 proponents, though they had organized the ballot initiative, had not “suffered a concrete and particularized injury.” That meant lower courts had erred in granting them standing to defend the law. Consequently, an earlier court decision in which the State of California participated (which found Prop 8 unconstitutional) stands. The Court thereby dismissed any consideration of gay marriage on its “merits.” They instead argued that only state representatives, and not Prop 8 proponents, had the right to defend the initiative in court.

The ruling has far-reaching implications. Citizens’ initiatives exist in part to bypass state officials when those officials are not serving the will of the people. Many initiatives are pursued precisely because the current administration or legislature opposes them, making the state an unlikely defender of challenged initiatives. As Justice Kennedy stated is his dissenting opinion,

“(The purpose of the initiative system) 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.”

This decision gives legislators, attorney generals, and other politicians the virtual ability to veto initiatives they dislike.

Imagine millions of citizens pass an initiative that limits legislators’ power—say, that limits their ability to raise taxes. Imagine then this law to prevent tax increases, constitutionally passed through the initiative process, is challenged in court. The state obviously has no interest in defending that law, or any law that limits its power. But the Hollingsworth decision means that the state is the only body that can defend such an initiative in court, even if those individual citizens who officially worked to get the initiative passed want to participate. The same goes for any initiative that is at odds with current politicians’ interests. Imagine a law (passed through an initiative) to limit water pollution is challenged by a local steel plant that aids economic growth. Politicians could decide not to defend the law in order to help their state look more prosperous at the expense of constituents’ health. What if an initiative to prevent crony capitalists from tax evasion is challenged in court? The politicians who are funded by these corporations are under no obligation to appeal. The list of ways state power has expanded at the expense of the people is potentially innumerable.

Regrettably, the Hollingsworth decision greatly harms the people and democracy. Regardless of one’s opinion of state-sanctioned same-sex marriage, the rationale behind the Hollingsworth case is a threat to our liberites. Again, Kennedy:

“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. The Court today frustrates that choice…”

So much for “We the People.”

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