The other Supreme Court decision on same sex marriage-Hollingsworth v. Perry-is certainly a blow to those who want to preserve traditional marriage, at least in California. It would seem to doom CA Proposition 8, an initiative passed by the voters of that state that defined marriage in traditional, i.e. man and woman terms. Less noticed is what it means for the initiative process.
The Orange County Register sees this as a blow to direct democracy, which it surely is.
The Supreme Court's ruling Wednesday in Hollingsworth v. Perry was celebrated in much of California. By a 5-4 majority, the justices held that defenders of Proposition 8, the voter-approved 2008 ballot measure defining marriage as a union strictly between a man and a woman, lacked standing to challenge a federal judge's ruling that the law was unconstitutional.
Standing indicates the right to bring a question before the court. I may think that the President's actions in Libya violated the War Powers Act (which I do). I cannot sue the President and thus bring this question before the Court because I lack standing. I cannot show that I have been personally injured by the supposed violation. The Court's decision in Hollingsworth turned entirely on the question of standing.
The justices declared that, if state officials refuse to defend a ballot measure duly enacted by their state's voters, not even the private citizens who actually sponsored the measure may defend it in court.
The voters of California passed Proposition 8. Opponents of Prop 8 sued and a federal court struck it down. Defenders of Prop 8 appealed and the High Court heard the case. It ruled that only the state government had standing to defend the proposition in court.
This looks to me like a big defeat for direct democracy. The initiative process is designed precisely to allow voters to go over the heads of their state legislatures and make laws that those legislatures were unwilling to make. Now we see how easy it is for the Governor to nullify a proposition passed by the voters. All that has to happen is for someone to sue before a sympathetic court. Then the Governor need merely decline to defend the proposition. Apparently no one among the millions who may have voted for or pushed for the proposition has standing to defend it in court.
I am not particularly disturbed by this because I have long been a critic of the initiative and referendum process. If voters are not satisfied by the action or inaction of their state legislatures, the solution is to vote the rascals out. The Court's rule of standing in Hollingsworth clearly weakens the initiative process by making it relatively easy for the state government to nullify any proposition. I am okay with that.
Most of my friends on the left are very fond of direct democracy. They should be very disturbed by the Court's action in this case. They won't be. Winning on the issue is all that matters.