Critics say Supreme Court's Prop 8 ruling takes power from voters

From: Washington Times


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.”


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.


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.”