Thursday, June 27, 2013



Vetoing Democracy
Justice Roberts’s clumsy opinion threatens the initiative process in 26 states.
John Fund

Chief Justice John Roberts has done it again. His twisted reasoning in last year’s Obamacare ruling wasn’t the only unpleasant surprise he’s sprung on supporters of the rule of law.

His majority 5-to-4 opinion in California’s Proposition 8 case — throwing the issue back to California because plaintiffs lacked standing to argue in his court — is as bizarre as his Obamacare decision. His opinion was joined by an ideological tossed salad of justices that ranged from Ruth Bader Ginsburg to Antonin Scalia. But the fact that its list of supporters is unusual doesn’t mean it won’t present real problems for both liberals and conservatives when it comes to democratic freedoms. Has the initiative process in 26 states now been fatally undermined?

Chief Justice Roberts’s opinion held that supporters of Proposition 8, which 52 percent of California voters used in 2008 to define marriage as between only a man and a woman, lacked standing to defend the measure in federal court after state officials refused to defend the law in court. Supporters could fight for Prop 8 in California courts, the court said, because California recognized their standing, but they can’t appeal in federal court because they don’t have standing that meets federal rules. Since a federal district court had previously ruled Proposition 8 unconstitutional, supporters of gay marriage claim the Supreme Court has effectively made gay marriage the law in California.

Governor Jerry Brown is already ordering clerks to issue marriage licenses to gays in California, a bold step given that it’s unclear the federal district court had the power to extend gay marriage to anyone other than the specific people involved in the suit. But that’s for other courts to sort out in a year or so; for now, Brown is trying to make a show of force that he hopes courts won’t dare challenge.

In California, the initiative process was started in 1911 specifically to pass laws that the governor, other state officials, and the legislature didn’t want to pass. As Justice Anthony Kennedy, who is from California, points out in his dissent to the Roberts opinion: “The initiative system ‘grew out of dissatisfaction with the then governing public officials and a widespread belief that the people had lost control of the political process.’”

Well, that belief will now reassert itself in the wake of Roberts’s opinion.

In the case of Prop 8, Governor Brown, Democratic attorney general Kamala Harris, and the Democratic legislature all refused to defend in court the ban on gay marriage. That’s why the state supreme court unanimously allowed the proponents of Prop 8 to defend it in court, a decision that was ratified by the liberal federal Ninth Circuit Court of Appeals when the Prop 8 case was heard there on its way to the Supreme Court.

Justice Kennedy said during oral argument in the Prop 8 case last March that not granting standing to the proponents of Prop 8 in federal court would have dangerous implications, what he called “a one-way ratchet.” All state officials have to do is refuse to defend a law passed by the people, watch as those seeking to overturn the law go judge-shopping (Prop 8 opponents found a gay judge in San Francisco who did not disclose his sexual orientation), and then watch the proponents of the initiative lose in federal court because they “lack standing” to represent the law they wrote.

Justice Kennedy, in his dissent from the majority, warned that “the Court’s decision also has implications for the 26 other states that have an initiative or popular referendum system, and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation.” Kevin Drum, a blogger for the liberal Mother Jones magazine, notes that he is in favor of gay marriage, but that the Supreme Court’s “gutting” of the people’s right to defend their own initiatives “has neither the flavor of justice nor of democratic governance.”

Others are already raising the alarm. Bill Jurkovich, a voter in Citrus Heights, Calif., says: “Apparently, we the people do not have the right to create a law that the political elite disagree with. Is it any wonder that people are becoming radicalized, have lost faith with the political process, distrust government, and do not vote?” Indeed, the California supreme court has in the past ruled that “if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged . . . this de facto veto will erode one of the cornerstones of the State’s governmental structure.”

The California supreme court went on to say: “In light of the frequency with which initiatives’ opponents resort to litigation” — over one-third of the initiatives approved in Arizona, California, Colorado, Oregon, and Washington between 1900 and 2008 were challenged in court – “the impact of that veto could be substantial.”

John Eastman, a former dean of Chapman University’s law school, says he believes people of all political persuasions should worry about the “huge hole” Justice Roberts has blown in the initiative process in order to sidestep ruling on the merits of Proposition 8. “Someday, liberals could win an environmental-protection measure in a state and see a conservative governor and attorney general refuse to enforce or defend it,” he told me. “When that time comes, the proponents may seek their day in federal court and find that there’s only darkness because they lack any standing to defend their own law.”

The threat to the initiative process in 26 states is real. Starting with California, voters should quickly explore ways to craft some mechanism that will allow proponents to defend initiatives in court if elected officials refuse to do so. Sounds like a good subject for another initiative — and if such a measure were to pass, elected officials would probably be quite leery of trying to block it.

— John Fund is national-affairs columnist for NRO.

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