Many news reports on the California Supreme Court’s decision to allow Proposition 8 initiative proponents to defend their initiative before the bench called the decision ‘a set back for gay rights.’ More accurately the decision was not for or against gay rights, it was a victory for the people’s right of initiative.

It makes both legal sense and common sense that initiative proponents are allowed to defend their law against legal and constitutional challenges. Leaving a law passed by the voters without a champion would be more than an insult to the proponents; it would be an aberration of justice to the majority of voters who passed the measure.

Simple fairness dictates that an important constitutional question gets a vigorous defense in front of an impartial panel.

In the case decided yesterday, the California high court was responding to a request from the 9th Circuit Federal Court, which asked if California law permits the proponents to defend initiatives if the state refuses to step up and defend a measure passed by the voters. Proposition 8, which prohibits gay marriage, was passed in the 2008 general election but both Governor Arnold Schwarzenegger and then-Attorney General Jerry Brown refused to argue for the law in court deciding on their own that the measure was unconstitutional.

The California Supreme Court found that when proper authorities refuse to carry out their duties to defend a challenge to a law, “the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity.”
The court’s decision has nothing to do with the issue of the case or ideology.

The will of the people is expressed through a successful ballot measure. Opponents have the right to challenge ballot measures if they believe basic rights have been stripped away by a majority vote. The courts have a right and a duty to make that determination and nullify the law if required by constitutional dictates.

But the people’s voice cannot be stilled by manipulation of the legal process when the measure at hand is refused a champion.

In a 1999 opinion piece titled, “Who Represents Voters at the Mediation Table,” published by the Los Angeles Times, I argued that the Gray Davis administration set up a mock adjudication of Proposition 187, the measure denying benefits to illegal aliens, by submitting portions of the measure for mediation. The problem was that on both sides of the mediation table would be non-supporters of the measure.

As I wrote in the piece, “As to any proposition’s constitutionality, that is for the courts to determine in an open hearing with both sides of the argument–true supporters and real opponents–making the case for and against it.”

The same is true today.