The United States Supreme Court’s decision on Proposition 8 just might bring about new initiatives not only on the pro and con side of the gay marriage argument but also from third parties concerned about the initiative process.
Before the decision even came down to uphold the lower court’s decision for lack of standing by those who defended Prop 8 in the court, reports circulated that gay rights supporters would put up an initiative to affirm gay marriage if the court did not. While that course seems less likely now given a decision that will allow for the continuation of gay marriages in the state, supporters of gay marriage still might like to see Prop 8 wiped off the books by another vote guaranteeing that gay marriage applies to the entire state. One theory is that the ruling may only apply to Alameda and Los Angeles Counties, where the plaintiffs in the case live; although both Governor Jerry Brown and Attorney General Kamala Harris say the entire state is covered.
The legislature might put a constitutional measure on the ballot to approve gay marriage, which would save the expense of an initiative qualification effort.
On the other side, supporters of Prop 8 insist that the voters have been ignored by the court’s ruling and may attempt to make their point with another initiative. This seems unlikely given that opposition to gay marriage has dropped dramatically since Prop 8 passed in 2008 according to most polls. In addition, many Republican leaders do not want to see another Prop 8 on the ballot rallying activists on both sides of the issue while an effort is made to rebuild the party.
However, the court’s decision might prompt a new initiative effort that could bring political opponents together — the right of proponents to defend an initiative if elected officials choose not to do so.
Back in March on this site, I wrote, “If the people’s representatives refuse to stand up for a law the voters support, there should be someone in the courtroom to express the opinion of the majority. I say this not as a supporter of Proposition 8, which I am not, but as an advocate for the initiative process.”
Already, Jon Coupal, president of the Howard Jarvis Taxpayers Association, has suggested that it might be necessary to put forward a ballot measure to insure that proponents of initiatives have the ability to defend their measures in court. Coupal told the Sacramento Bee “It’s very concerning that the validity of their sponsored initiative would depend on an adequate defense by an elected official when the whole reason for the initiative process is to bypass the political structure … The initiative process is the people’s process, and this really shifts the defense of that process to those that are, on the natural, hostile to it.”
At the same time, Scott Lay, publisher of the Nooner blog, sketched out a scenario in which liberal supporters of a measure might be concerned when they cannot defend a measure elected officials might choose to distance themselves from.
At a news conference celebrating the ability for gays to marry after the court decision was released, Lt. Governor Gavin Newsom noted the possibility of mischief by elected officials. “The fact that they raised standing creates some subsequent precedent questions and I think some legitimate questions on all sides about the power of elected officials to in essence trump and deny the will of the voters.”
Justice Anthony Kennedy, a Californian who wrote the majority opinion in declaring the Defense of Marriage Act unconstitutional, wrote the dissent on the Prop 8 case. He pointed to California allowing the proponents to defend initiatives as “essential to the integrity of its initiative process.” He noted that the majority on the Supreme Court ignored California’s position on proponents because the Prop 8 advocates could not point to “a formal delegation of authority.”
That would be remedied with a constitutional amendment … by initiative.
One positive note for the initiative process in the court’s decision was an affirmation of the process itself. This nod to the initiative process is sure to put cold water on efforts to undo the initiative process under the constitution’s “guarantee clause” for a Republican form of government found in Article IV, Section 4.
In the Prop 8 decision the court majority wrote: The Court does not question California’s sovereign right to maintain an initiative process…