The media reaction to the Supreme Court’s two rulings on gay marriage last week focused largely on just one of them: the verdict striking down the federal Defense of Marriage Act. Relatively little attention was paid to the other, a decision on California’s Proposition 8. But that decision could have greater consequences—not only in the Golden State, where it hobbles direct democracy, but in every other state that uses popular initiatives to overrule the governing class.
Some background: in 2000, California voters approved Proposition 22, a ballot initiative limiting marriage to heterosexual couples, with 61 percent of the vote. (California already permitted domestic partnerships for gay couples.) In 2008, however, the California Supreme Court overturned the law, ruling in a 4–3 decision that Prop. 22 violated the state constitution’s protections of liberty and personal autonomy. In response, advocates of traditional marriage placed a new initiative, Proposition 8, on the state ballot that year. Prop. 8 proposed that the prohibition on gay marriage be enacted as an amendment to the state constitution rather than as a simple statute. The initiative narrowly passed, garnering about 52 percent of the vote. Shortly thereafter, the legal wrangling began that would eventually take the case to the Supreme Court.
The first lawsuits challenging Prop. 8 failed before the California Supreme Court for an obvious reason: one cannot mount a meaningful challenge to the constitutionality of a constitutional amendment. It’s possible, however, to invalidate a state constitutional amendment if you show that it contravenes the federal constitution. That was the tack that Prop. 8’s opponents chose next, challenging the measure in federal district court, where Judge Vaughn Walker overturned it as a violation of both the due-process and equal-protection provisions of the Fifth and Fourteenth Amendments. Walker’s ruling was upheld by the Ninth U.S. Circuit Court of Appeals and then made its way to the Supreme Court.
When Prop. 8 passed, Governor Arnold Schwarzenegger and Jerry Brown, then the state’s attorney general, refused to defend the measure in court, abdicating state officials’ traditional responsibility to enforce the law even if they disagree with it. Defending Prop. 8 fell to those who had shepherded it through the initiative process. While refusing to issue judgment on the merits, the Supreme Court majority, led by Chief Justice John Roberts, decided that Prop. 8’s backers lacked standing to litigate the issue. “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” Robert wrote. “We decline to do so for the first time here.”
Regardless of how one feels about gay marriage as a policy matter, the Court’s ruling creates a chilling legal precedent for the future of direct democracy—that is, passing laws by popular vote. The opinion dictates that any law that an electorate passes can be invalidated if it is challenged in court and the state’s constitutional officers refuse to defend it. This amounts to an executive-branch veto for laws approved by an electoral majority. Direct democracy is far from perfect; it often oversimplifies issues and insulates voters from the consequences of their policy choices. At its best, however, it allows popular majorities to tighten the reins on out-of-touch politicians. The Prop. 8 ruling loosens those reins.
To understand the fundamental injustice of the Court’s decision, imagine a world in which the history of the initiative is reversed. In this alternate universe, California voters have passed an initiative creating a constitutional right to gay marriage. But the Supreme Court rules that California’s governor and attorney general—who favor traditional marriage—can invalidate the law by refusing to defend it in court. The popular will has been thwarted by the calculated inertia of two elected officials. It’s doubtful that those currently praising the Court’s Prop. 8 decision would find much to celebrate in such an outcome. Yet the legal logic is precisely the same.
In the corresponding Defense of Marriage Act case before the Court, the majority, led by Justice Anthony Kennedy, went out of its way to proclaim fealty to the rights retained by the states under federalism; that was why the resulting decision extended federal benefits only to gay couples in states that already recognized gay marriage, rather than to gay couples everywhere. Yet the Prop. 8 case cut in precisely the opposite direction. A Supreme Court truly deferential to state sovereignty would have recognized California’s right to grant legal standing to the measure’s advocates, rather than let the malign neglect of Schwarzenegger and Brown carry the day.
All conscientious Californians should be disturbed by the sweeping implications of the Prop. 8 ruling, but it augurs especially poorly for the state’s shrinking cadre of conservatives. With every statewide elected office and both houses of the state legislature controlled by Democrats, only the initiative process gives California conservatives a real chance to have their voices heard. As a result of the Court’s ruling, California liberals now have a mechanism by which to frustrate this last meaningful check on their dominance. The state’s future will only grow dimmer, and the Supreme Court will deserve the blame.
