The US Supreme Court's two recent gay marriage rulings, more political than principled, left a significant gap in the CA initiative process. The strong language contained in Justice Kennedy's denunciation of the federal Defense of Marriage Act left little doubt that state gay marriage bans will be thrown-out when they reach The Court. The Justices, though, could not bring themselves to do so directly in their CA Prop 8 challenge. Presented with the easy-out of a procedural irregularity ("standing to sue"), this Court sidestepped the merits of the case and concluded that Prop 8's defenders were improperly before them.
In so doing, they reinstated trial court Judge Walker's unconstitutionality opinion. Eloquent, thorough and even stronger on the civil liberties than Kennedy's DOMA tome, that ruling delighted California supporters of same-sex marriage, but delayed similar outcomes in 37 other states -- unnecessarily, in my view. And more generally, it created a leak in the coverage of the CA initiative process that requires attention: when Executive Officials refuse to appeal a federal court order regarding a Proposition enacted by the people of California, who may represent that law in further reviews?
It's actually surprising that it has taken this long for the issue to arise. The referendum option became law here in 1911, as the so-called Progressives of Hiram Johnson and John Haynes swept into power. They were seeking to wrest away control of a Sacramento government then in the thrall, and pocket, of the railroads. Allowing The People to by-pass roadblocks set-up by any Governor and Legislature that had been bought-and-paid-for by special interests would act as a check on entrenched power and its inevitable chicanery. Obviously, that limit-on-power safeguard remains just as important today.
In the intervening 101 years, 1759 Propositions have been filed with the Attorney General, on and from a very wide range of topics and angles. 360 'Props' gained enough signatures in the petition stage to actually get voted-upon in elections. Their success rate is about 1/3, including proto-Tea Party Prop 13 limiting property taxes (1978), Prop 65 on notice re carcinogens (1986), Prop 2 providing a few minimum decencies in the treatment of food animals (2008), and of course, Prop 8 (also 2008).
The contrarian nature of referendums is illustrated by Prop 2, which broke a 20-year log-jam in the legislature on that topic. Big Ag is among the state's most potent lobbies, and similar bills had gone nowhere, fast. Prop 2 passed in a landslide 63 37%. $omehow, the people's representatives sometimes lose track of their constituents' interest$.
Which brings us to Prop 8's troubled trajectory. Narrowly passed as a state constitutional amendment, (to overcome an earlier State Supreme Court ruling that its predecessor violated the CA state constitution), Prop 8 was tested in federal court under the US Constitution's guarantee of Equal Protection of the law. Judge Vaughn Walker, who had been nominated to the bench by President Reagan and confirmed under the elder Mr. Bush (and who is gay himself, which was not news in the SF legal community), ruled broadly that the Proposition failed under Equal Protection scrutiny. Neither AG Harris nor Governor Brown would pursue an appeal.
Now, contrary to the howls of Prop 8's supporters, that refusal was neither a dereliction of duty, nor even all that unusual. After all, the refusal was not to enforce the Prop's terms, which they had done it was to appeal a court order, which the losing side often opts not to do. Presidents and Governors on both sides of the aisle have occasionally refused to defend other provisions they particularly disfavor. Hence supporters, who had drafted Prop 8 and successfully got it passed, took-on the appeal. The federal 9th Circuit even asked the CA Supremes whether that would be kosher under state law, and got an affirmative response.
That was not enough for the US Supremes, however, who control access to the federal court system. The Roberts majority opinion seems to require that only an officer of the state may pursue the appeal of a state law, and that no private party, even a sponsor, can demonstrate a sufficiently direct interest in the outcome to be deputized to do so. He noted that in a similar prior case ('Karcher'), two NJ legislators were approved as authorized appellants while in office, but that they lost that standing when they were subsequently voted-out. Thus, simply appointing the referendum's sponsors fine by the CA Supremes is not sufficient for access to the federal system.
It appears that, in order to satisfy the standing requirements of both state and federal courts, CA's initiative process must be amended more significantly but hopefully in a way that does not sacrifice its usefulness as a check on entrenched power. That's a tricky proposition.
One approach, admittedly not air-tight, would be to amend the process to require that the AG either provide a defense, or appoint another willing state official to do so. It's likely that any Prop that achieved a voter majority would be favored by Some state official, whose career and coffers might be served by sponsoring the appeal. That official, in turn, must be allowed to appoint another sponsor if s/he loses office.
Another possibility would be to require the declining AG or Governor to create and fund something like a Special Prosecutor's office to handle such an appeal. Although in either case, the official might try to appoint an individual least capable of persuasion, there would be ample opportunity for friends of the court to intervene and make the available arguments on the merits. I'm not sure what you do if such a governor or AG refuses to make the appointment, but at least then you have a better dereliction-of-duty argument than the one currently in vogue.
The thinking on this issue is in the very early stages, so it's likely that there are better solutions out there. And there is hope for some action, as concerns have been raised all across the political blogosphere about this issue -- no one knows when it will gore their particular ox. The initiative option is a crucial piece of our governing processes; it's important that this issue be addressed before the next electoral cycle in 2014.
Synopsis: The Prop 8 ruling left a hole in CA's referendum process. It needs fixing before the next general election -- not an easy matter.