The U.S Supreme Court’s Proposition 8 ruling delivered a major victory for the marriage equality push. But many California political observers are worried it also may have undermined the state’s initiative process.
That’s because years of debate – over equal protection, over the institution of marriage – boiled down to this: Chief Justice John Roberts and four other justices didn’t think the people who put Proposition 8 on the 2008 ballot had the right to defend it in federal court.
The proposition’s authors stepped into that role after California’s governor and attorney general decided not to appeal a lower court ruling overturning Prop. 8.
Kim Alexander of the California Voter Foundation, an election watchdog group, worried the decision could set a dangerous standard. “To decide that the supporters had no standing and therefore could not defend the law sets a new precedent,” she said, “and one that could be exploited by political leaders in the future – by the governor or the attorney general or secretary of state – to simply refuse to defend initiative laws that they disagree with.”
Justice Anthony Kennedy voiced similar concerns. In his dissenting opinion, the Sacramento native wrote the court’s ruling “disrespects” both the California political process and the state’s Supreme Court. Kennedy argued the decision goes against the basic premise of initiatives – that people, not the government, hold the ultimate power. “The California initiative process embodies these principles and has done so for over a century,” he wrote in the dissent.
The 2011 California Supreme Court ruling that Kennedy repeatedly quoted ruled the initiative process would be “significantly impaired” if state officials could effectively veto measures they didn’t want, by refusing to defend them in courts.
A full, vigorous defense of an initiative is essential, the court stated, “if a court decision … is to be perceived as legitimate by the initiative’s supporters.”
Author Joe Matthews called Kennedy’s “power to the people” argument a bit too romantic. In his book, “California Crackup,” Matthews wrote California’s initiative process is too rigid and too easily abused by special interests. Matthews said the Supreme Court was right to deny standing, and pointed out initiative sponsors still hold the right to defend their propositions in state court. “The core message from the majority in the opinion was: California, handle your own business,” he said. “You created this crazy initiative process unlike anybody else’s initiative process, and you should deal with it.”
Matthews’ larger concern was the fact that a constitutional amendment like Prop. 8 was so quickly rejected by both California public opinion and the federal courts. “To have something voted on in 2008, that if it were put on the ballot again not that many years later would almost certainly lead to a different result, that’s a real issue.”
Critics of California’s initiative process have been holding up Prop. 8 for years now as an example of what’s wrong with the system. Loyola Law School professor Justin Levitt said when legislators craft laws, they can air the issues, debate amendments and reach compromises. “And you get none of those things with the initiative process,” he said. “It arrives straight up or straight down, here it is. If you don’t like a piece of it you have to decide whether the rest is good enough as is. There’s very limited debate on the issues, and there’s virtually no discussion of trade-offs down the road.”
And that can lead to propositions that voters regret or courts reject.
Lawmakers, think tanks and voter advocacy organizations have suggested reforming the process by doing everything from limiting proposition topics to allowing legislators to suggest counter-proposals after measures qualify for the ballot.
But for a century-old system that’s so deeply engrained into California’s identity, any change would be an uphill fight.