Citizen's Initiatives Dealt A Significant Blow

Since I am part of a group working to pass a ballot initiative in Arizona to allow same sex marriage in this state, I was obviously pleased with the decision to strike down DOMA yesterday.

However, the decision not to rule based on lack of standing on the Prop 8 suit creates a real mess above and beyond any implications for same-sex marriage.

Proposition 8, a California initiative to ban same-sex marriage that likely would not pass today, was introduced and passed five years ago because the authors of the initiative knew it was a step legislators would never take but that they thought (correctly at the time) that the voters would support.  In fact, in a nutshell, this is exactly what the initiative process was meant to achieve.  If citizens think the legislative process is broken on a particular issue (e.g. taxes, where legislators have entirely different incentives vis a vis raising taxes than do taxpayers), they can do an end-run.  In a sense, this is exactly what we are doing in Arizona with our Equal Marriage initiative, though of course with the opposite desired end result from Prop 8.  But just as in that case, we do not have high hopes of the current legislator passing such a Constitutional Amendment, so we are doing it through citizens initiative.

The problem in the Prop 8 case was that when the law was challenged in court, neither the governor nor the legislature was willing to defend it in court (remember, that it was passed over their opposition).  Given the very nature of ballot propositions and the reasons for them discussed above, this is likely a common occurrence.  But the Supreme Court refused to rule on the case because, as I understand their argument, only the administrative or legislative branch of the state government has standing to bring the appeal (ie defend the original law that was overturned by a local Federal court).

This is a really bad precedent.  It means that any initiative passed by citizens that is opposed by the current state government is enormously vulnerable to attack in courts.  If the government officials are the only ones who have standing, and they refuse to defend the law, then it will lose in court almost by summary judgement.

There has got to be some process where courts can grant citizens groups who filed and passed such initiatives standing to defend it in court.  Certainly there could be some judicial process for this, almost like the process for certifying a class and its official representative in a class action suit.  Without this, citizens initiatives are going to lose a lot of their power.

Update:  Scott Shackford at Reason writes

So should we be worried? Could the reverse – voters approve gay marriage recognition only to have the state refuse to back it – happen? What if the voters approved term limits for state legislators and they just ignored it?

The majority decision was not unsympathetic to the argument (incidentally, it’s interesting to see how polite these arguments are when you end up with such an unusual combination of justices on each side) but firm in that: 1) Getting a ballot initiative passed does not make you an agent of the state with standing; and 2) If you aren’t an agent of the state who is expected to defend the law, then you have to have proof of a personal harm and the proponents do not. Arguably, if the situation were reversed (the state refusing to defend an initiative recognizing gay marriage), it’s easy to see how they could allow standing and the outcry that would cause. A person denied a marriage license from a same-sex ballot initiative may be able to prove harms from discriminatory policies and earn standing.

I had not thought of it that way, but it is interesting that the Court could not find any demonstrated harm to straight petitioners from the legality of same-sex marriage.  I suppose that is a good sign.


  1. CTD:

    "But the Supreme Court refused to rule on the case because, as I understand their argument, only the administrative or legislative branch of the state government has standing to bring the appeal (ie defend the original law that was overturned by a local Federal court)."

    Kind of. As I understand it, the plaintiffs would have had standing to appeal is they could articulate some remediable damage or injury. In this case, the anti-gay marriage groups simply could not. I still find the precedent very problematic, but I don't think it's quite as far-reaching as you imply. I can certainly see it rearing it's ugly head on other types of referenda, though.

  2. KipEsquire:

    Be careful not to conflate a challenge at trial level with an appeal. Perry says nothing about the former.

    And anyway, "citizens" is a weasel word that has no anchor to reality, let alone the law. "Citizens" (i.e., the citizenry writ large) have no rights; only individuals have rights. And there is simply no basis to infer a right to appeal in federal court from a right to pass an initiative through state-specific processes.

    All else is sour grapes and butthurt.

  3. John R:

    Standing is just another form of Jim Crow laws.

  4. mahtso:

    I think blogger is right and the case provides a bad "means' to achieve what may many see as a "good" end. (I take libertarian view: the government should not be in the marriage business at all.)

    In Prop 8, the California Supreme Court had ruled that as a matter of California law, the "defenders" of Prop 8 were authorized to pursue the matter. The USSC rejected that 5 -4, and the 4 explicitly stated that the California law was binding on the SC. I'm no expert and have no idea whether the majority or the minority was correct, but I hope to find some legal commentary addressing the issue.

  5. Tom Lindmark:

    It's worth noting that the Obama administration refused to defend DOMA despite the fact that the president's oath of office requires him to defend the laws of the US. His rationale for not adhering to his oath was that DOMA was unconstitutional and thus conflicted with the part of his oath which required him to defend the Constitution.
    The California oath of office does not mention the defense of California laws, only the defense of the California constitution while the Arizona constitution does mention the law of the state (

  6. Tom Lindmark:

    Sorry, hit the wrong button. Here's the rest.

    There is considerable discussion about elected officials using their discretion to enforce statutes ( and naturally there is no consensus.

    Given the tendency of elected officials to pick and choose which laws they wish to enforce or defend it would seem that the only defense voters have is to ensure they elect individuals who have a propensity to respect their will. Good luck finding people like that in the gene pool of office seekers.

    It's also probably worth noting that while the negation of DOMA and Prop. 8 were desirable outcomes, some of the means employed to cause those results were suspect at best. We too often overlook expediency when it serves our intentions while forgetting that it may be used against us the next time.

  7. John O.:

    I consider this karma for having Prop 105 passed in 1998 which hamstrung the Arizona Legislature in handling badly written or grossly unconstitutional initiatives that have been passed in the name of some common "good". The initiative system is a double edged sword, with the few great initiatives that are passed comes many awful initiatives that are passed. At the same time though I do sympathize for the need to have standing for more than just state government on these issues. And to allow people to have standing despite not being "injured" over laws that well really do need to be challenged on their premise. However the SCOTUS is relying on Arizonans for Official English v. Arizona as that case resulted in the Court ruling on standing and requiring that standing must be present from beginning to end of the case along its appeals and that proponents of a ballot initiative amendment cannot assume standing during appeals.

  8. John O.:

    All public officials must defend the laws of the their State and of the United States, however they are not ever forced to enforce enforce laws they find repugnant to the Constitution. The Constitution is the supreme law and any conflicts with it, it has complete supremacy, unless duly amended. You cannot defend all the laws and defend the Constitution when large numbers of laws are unconstitutional in all sorts of manners. It is always a judgement of not just the public officials we elect but of ourselves as citizens as we recognize laws and Constitution by obeying them. When it comes to DOMA, the law is simply not part of Congress' subject jurisdiction to define a matter left to the states.

  9. Tom Lindmark:

    We have a mechanism for establishing the constitutionality of statutes. It's called the judicial system. When elected officials and citizens take it upon themselves to ignore laws as they choose you end up with anarchy.

  10. Maximum Liberty:

    There is a "process where courts can grant citizens groups who filed and passed such initiatives standing to defend it in court." The California court allow exactly this. State courts are free to do all kinds of things that federal courts are not. This case could have been fought in the state courts all the way to the state supreme court. At that point, the standing issue might become a problem if someone wanted to appeal to the US Supreme Court. But that is pretty different from implying that there was no court process available.

  11. jdgalt:

    Indeed, that is what will probably happen now. The Supreme Court didn't just say the proponents had no standing to appeal to itself, but also to the 9th circuit -- thus reinstating the state Superior Court decision, which is non-precedential. That decision can now be further appealed within California's state courts (where the proponents do have standing). If it isn't, then the question of Prop 8's validity is still unresolved (except for the two couples who were plaintiffs in that case -- they are now allowed to get married).

    The lesson to be learnt here, I believe, is to make sure your initiative includes language giving its authors the standing to defend it in court. If Prop 8 had had that, the Supreme Court would have had to rule differently.

  12. Tom Lindmark:

    An article from Reason which addresses your concerns.

  13. perlhaqr:

    When elected officials and citizens take it upon themselves to ignore laws as they choose you end up with anarchy.

    Yay anarchy!

    Oh. Damn. You were using that word as a synonym for "chaos", weren't you?

  14. obloodyhell:

    }}}} the Court could not find any demonstrated harm to straight petitioners from the legality of same-sex marriage. I suppose that is a good sign.

    Yeah, I can't find any either. Oh. Except this. :-S
    WTF, Warren, are you just determined to utterly ***ignore*** the OBVIOUS damage being done to individual rights over this?

  15. Nehemiah:

    This was a cowardly decision. Once again CJ Roberts twists judicial logic beyond recognition. Had they decided on the merits it is likely they would have reversed the circuit and district decisions and let Prop 8 stand. It would have been the supreme test for Kennedy who is strong on Federalism principles, but also sympathetic gay rights. In general the courts seems to be taking a more Federalist bent now days, i.e., DOMA left state marriage recognition in tact, in Shelby County v Holder seemed to favor state sovereignty relative to voting laws and even though the court affirmed the employee mandate in Obamacare they did side with the states on the coercive nature of Medicaid expansion.

  16. Nehemiah:

    You are exactly right about including "standing" language in the ballot initiative itself. That trumps uncooperative attorneys general who fail to defend the initiative if passed into law.

  17. John O.:

    Anarchy, please...

    It is everybody's responsibility to judge the validity of all the laws in conflict with the Constitution, you cannot delegate that to a bunch of justices. The courts recognize the law and enforce what "it" has determined to be proper, which is not very consistent with the principles instilled in the Constitution. No law should be assumed constitutional just because the Congress passed it. Its the job of Congress who passed it and the official enforcing it to prove a logical, consistent, and unbroken chain showing that the Constitution authorizes the statute and its enforcement. When that happens the people and its agents begin respecting the Constitution and its just and authorized laws more and more.

  18. LarryGross:

    the basic problem with citizen initiative is this. Just like laws passed by the legislature - initiatives approved by citizens can be determined to violate the constitution.

    What the SCOTUS basically said was that the State Courts ruled the citizen initiative as un-constitutional (California Constitution) and then they appealed to the SCOTUS- who then basically said the citizen group lacke standing to challenge their own State Supreme Court decision based on the California Constitution.

    just because citizen have the right to initiate referenda does not make their ballot question "constitutional".

  19. jhertzli:

    It looks like Justice Kennedy is opposed to expanding Federal power either way (at least on this issue) and Justice Roberts is in favor of expanding Federal power both ways.

  20. Philip Ngai:

    This was an amendment to the California Constitution and the CA Supreme Court wisely decided not to rule it unconstitutional with respect to the California Constitutio.

  21. Philip Ngai:

    No, the court that struck Prop 8 down was a Federal District court.

  22. Philip Ngai:

    It was Federal power that struck down Prop 8.

  23. Philip Ngai:

    No, the court that struck Prop 8 down was a Federal District court.