[Guest post by Aaron Worthing. Follow me by Twitter @AaronWorthing.]
You can also say, as Ed Whelan does, that this is a victory for the proponents of Proposition 8, but I have always agreed with Patrick that “[t]here is more at stake here than gay marriage.” Frankly, we think so similarly on this that I suspect that if we both wrote independently on the issue that we would both say almost exactly the same things. I can go through the minutiae, but the essence of the issue was this. In California, laws can be passed and constitutional amendments can be ratified by referendum. The essential question before the California Supreme Court was who had the right to defend such a law or amendment when challenged in court. The opponents of Proposition 8 wanted to say that only the governor and/or the attorney general had the right to defend it. And in this case, neither one was willing to do so. Indeed, when he was Attorney General, Jerry Brown argued that Proposition 8 was unlawful under the State and Federal Constitutions.
But if you step back for a moment, you realize how insidious the argument is. Whatever you think about referendums (I am personally wary of them), the animating idea behind them is that you can’t trust the pinheads in government to fully represent your interests, and thus “we the people” should be able to take matters into our own hands and change the law or the Constitution not only without the consent of any elected official, but over their objections as well. But if only the governor or attorney general can defend the law in court, that grants to those politicians a very real veto power over the law; because if they refuse to defend it, then it is very likely to be struck down. It is very easy to win a ball game when the other side doesn’t field a team. So the very spirit of the idea of changing the law by referendum is violated if there is no one there to defend that law in court.
So it is very gratifying that the California Supreme Court agreed with that thinking. From their introduction to the opinion:
In addressing this issue, we emphasize at the outset that although in this case the question posed by the Ninth Circuit happens to arise in litigation challenging the validity, under the United States Constitution, of the initiative measure (Proposition 8 ) that added a section to the California Constitution providing that ―[o]nly marriage between a man and a woman is valid or recognized in California‖ (Cal. Const., art. I, § 7.5), the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter. The same procedural issue regarding an official initiative proponent‘s standing to appear as a party in a judicial proceeding to defend the validity of a voter-approved initiative or to appeal a judgment invalidating it when the public officials who ordinarily provide such a defense or file such an appeal decline to do so, could arise with regard to an initiative measure that, for example, (1) limited campaign contributions that may be collected by elected legislative or executive officials, or (2) imposed term limits for legislative and executive offices, or (3) prohibited government officials from accepting employment after leaving office with companies or individuals that have benefited from the officials‘ discretionary governmental decisions while in office… The resolution of this procedural question does not turn on the substance of the particular initiative measure at issue, but rather on the purpose and integrity of the initiative process itself.
…because the initiative process is specifically intended to enable the people to amend the state Constitution or to enact statutes when current government officials have declined to adopt (and often have publicly opposed) the measure in question, the voters who have successfully adopted an initiative measure may reasonably harbor a legitimate concern that the public officials who ordinarily defend a challenged state law in court may not, in the case of an initiative measure, always undertake such a defense with vigor or with the objectives and interests of those voters paramount in mind. As a consequence, California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voterapproved initiative measure in order ―to guard the people‘s right to exercise initiative power… or, in other words, to enable such proponents to assert the people’s, and hence the state’s, interest in defending the validity of the initiative measure. Allowing official proponents to assert the state‘s interest in the validity of the initiative measure in such litigation (along with any public officials who may also be defending the measure) (1) assures voters who supported the measure and enacted it into law that any residual hostility or indifference of current public officials to the substance of the initiative measure will not prevent a full and robust defense of the measure to be mounted in court on the people‘s behalf, and (2) ensures a court faced with the responsibility of reviewing and resolving a legal challenge to an initiative measure that it is aware of and addresses the full range of legal arguments that reasonably may be proffered in the measure‘s defense. In this manner, the official proponents‘ general ability to appear and defend the state‘s interest in the validity of the initiative measure and to appeal a lower court judgment invalidating the measure serves to enhance both the fairness of the judicial process and the appearance of fairness of that process.
So the upshot of all of this is that this increases the chances that there will now be a fight in the Ninth Circuit over the validity of Proposition 8; a fair fight, where both sides are represented by people who want to win. The Ninth Circuit still has to decide whether this state-based standing is sufficient for federal purposes, but I am cautiously optimistic that they will rule this way—or if not, they will be corrected by the (U.S.) Supreme Court. I believe this means that now we will have a fair fight. May the side with the best arguments win.
I will also note that this is an example of what I was saying about liberal judicial thinking. This is the exact same court that has tried very hard by activist rulings to make gay marriage legal in California. But they correctly recognized that there were larger issues at stake and that the next time it might be their ox that is gored. Today the proponents get to defend an amendment banning gay marriage, but the next time it might be an amendment imposing pollution controls, or whatever they might like as an issue. It is not that they don’t have a liberal agenda, but that it doesn’t allow them to be so unprincipled that they would harm the referendum process in the pursuit of a narrow policy goal. That is the essential difference between judicial liberalism and political liberalism and that is why there is not a single dissent from this decision.
[Posted and authored by Aaron Worthing.]