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.
