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June 28, 2013 at 6:09 AM

The initiative process is the loser in Hollingsworth v. Perry

Justice Anthony Kennedy in 2011 (Evan Vucci / AP Photo)

Justice Anthony Kennedy in 2011
(Evan Vucci / AP Photo)

The U.S. Supreme Court’s decision in the California gay-marriage case, Hollingsworth v. Perry, troubles me. That’s not because gay couples will have full marriage rather than civil unions. What’s troubling is the implication for state ballot measures.

I believe in the initiative process. It is a check on the power of legislatures, which sometimes don’t represent the people very well. Initiatives are a way for the people to make changes legislatures won’t. In Washington the people have used the power to remove sales tax from groceries, abolish racial preferences in state jobs, sell off the state liquor stores and legalize marijuana, assisted suicide and same-sex marriage.

Washington enacted same-sex marriage through the Legislature and by public vote. It was the right way to do it, because the people had their say, they made their decision and it is politically irreversible.  California did it in 2008 with the state supreme court. For a measure of such popular interest, a court ruling was the wrong way to enact change. And the people didn’t let it stand. In California, unlike Washington, voters have the power to amend the state constitution. In 2008 they quickly passed a ballot measure to amend the California constitution to limit marriage to “one man and one woman.” It was Proposition 8. All right-thinking progressives thought Proposition 8 was terrible, and maybe it was, but the voters enacted it.

A gay couple filed a lawsuit arguing Prop. 8 wasn’t allowed under the federal constitution. And a court challenge of that kind is entirely legitimate.

The couple sued California in federal court, citing language in the U.S. Constitution about “equal protection of the laws” and “due process of law.” When a state is attacked in court, it is usual practice for the state to defend itself. In this case, officials agreed with the gay couple and declined to defend the state. Under California law, the job was left to the initiative sponsors. They had written it and convinced voters to approve it. They could defend it.

They did. They lost at district court, appealed, lost at appeals court, and appealed again. The Supreme Court took their case.

In Hollingsworth, a 5-4 majority of the U.S. Supreme Court  said the initiative sponsors had no “standing” because they had not suffered any harm. And that meant the original district court ruling erasing Proposition 8 was upheld and there is once again gay marriage in California.

That’s fine for gays in California. But what just happened to statewide initiatives? As Justice Anthony Kennedy pointed out in his dissent, “The whole object of the initiative system is to establish a lawmaking process that does not depend upon state officials …[But] this process 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.” If politicians don’t like the initiative — and often they don’t — they can now just decline to defend it and let it die.

If that happens, Kennedy wrote, no one will have defended “the outcome of a democratic election.” And that is a very uncomfortable place to be.

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