The Prop 8 case now in the U.S. Supreme Court has inspired a debate in California, and elsewhere, about ballot initiatives themselves.

Joel Fox in this space, and many others, have identified the issue well. If the governor and attorney general refuse to defend a ballot initiative that has passed and been successfully challenged, doesn’t that weaken the people’s right to petition via the initiative?

Fox and others argue that initiative proponents in such a case should have standing, so as to protect the initiative right. Attorney General Kamala Harris, and both Governors Brown and Schwarzenegger, have said they are under no obligation to defend a law they believe to be unconstitutional. They also note they are elected officials who have the discretion and duty to make decisions about which cases they pursue, and which they don’t.

I study and teach direct democracy, and I find the arguments on both sides to be strong. But neither is quite convincing.

To the Fox side I would pose this question: do voters really understand when they vote yes on an initiative that they are giving their legal marker to the proponents of the initiative to represent them – that is to say they are electing those proponents? (I don’t think so – I’ve voted for a few initiatives whose proponents I wouldn’t elect dogcatcher). And a follow-up: is it really your position that every initiative deserves a state defense – even if it violates human rights? Would you, for example, ask the attorney general and governor to defend the internment of Japanese and Japanese-Americans?

To the Harris-Brown-Schwarzenegger side, I’d ask: do you really want to be in the business of picking and choosing which initiatives (and other major laws) to defend, based only on your own sense of what’s constitutional and your broad discretion? Would you really want attorneys general or governors of the other party, or of profoundly different views, to possess the discretion you saw your positions hold? Or more pointedly, do you think it’s good politics and policy to let powerful interests know that they may be able to lean on you to not defend certain laws? Wouldn’t you be wise to protect yourself by only declining to defend laws rarely – and to have a clear standard defining when you won’t stand up for a decision of voters?

I raise those questions because I think there’s a middle ground in this debate, a solution that would draw a bright line that would be good for both sides. That solution is what might be called the Human Rights Exception to initiatives.

It would be a standard: state officials will defend ballot initiatives, even if they disagree with them, except when those initiatives would violate human rights. Human rights are the rights all of us have. One can argue about the extent of those rights, but one thing that both sides of the same-sex marriage debate agree upon is that marriage is a human right. (Yes, opponents of same-sex marriage have argued that gays have the right to marry – they just don’t want to let them marry people of the same sex because that would change the definition of marriage. The insanity of that argument is one of many reasons to be for marriage equality).

Instead of the relatively vague comments about constitutionality and discretion that the governors and attorneys general have offered, the way to invoke the exception should go something like this:

“I deeply respect the people’s power to petition their government – it is a fundamental right. And I would remind everyone that Article 2 of the California constitution begins by saying: All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” And I recognize that I have a duty to defend the laws, even laws with which I do not agree, or laws to which there may be serious constitutional challenges. That’s my job, whether I like it or not.

“But sometimes there are laws – made by the people or by the legislature – that violate fundamental human rights. And in those rare cases, and I am grateful such cases are rare, I cannot defend laws because I also have a duty to protect the fundamental rights of citizens. And this [INSERT INITIATIVE OR LAW] does such harm to those rights that I cannot defend it.”

The idea of a human rights exception for initiative is not a new one. In  some countries with direct democracy, questions of human rights are not eligible to be considered by voters. They are considered too fundamental. There is also history of democratic governments ignoring the verdicts of voters when they violate human rights: the Swiss government has said that the ban on minarets should not be enforced because it violates human rights and international treaties to which the country is a signatory.

Another way to deal with the problem of human rights and ballot initiatives is to have a more formal pre-review of ballot initiatives by judges before they go on the ballot. But that is a solution with its own problems.