Wednesday, June 26, 2013


Today's U.S. Supreme Court decision on Proposition 8 will have far-reaching consequences that have nothing to do with same-sex marriage.  The people's right under the California State Constitution to pass laws and amend the State Constitution by initiative has been gutted.  It is a tremendous victory for the monied power elites that often control elected officials.

Keep in mind that the purpose of the initiative process is to allow the people to pass legislation when the California State Legislature or the Governor refuses to address an issue.  Therefore the Governor and the California Attorney General frequently oppose initiatives, especially where they share the same political party or ideological positions.

Now, under the precedent of Hollingsworth v. Perry, if the opponents of a successful proposition can find one U.S. District Court judge to invalidate it, and the Governer and Attorney General, as in the case of Proposition 8, choose not to appeal the federal trial court decision, the will of the people can be ignored, because no one else has standing to appeal the court decision.

This is not a problem that can be fixed by an amendment to the California State Constitution, giving proponents of an initiative standing to appeal.  Standing in the federal courts is a federal issue, wholly controlled by the judiciary. The State of California is powerless to confer standing on persons whom the U.S. Supreme Court declares have no standing.  Not even Congress can confer standing on parties whom the federal courts declare have none.

Only Justice Kennedy's dissenting opinion recognizes this risk.  As noted by Andrew Cohen in his piece on the decision in The Atlantic, Justice Kennedy rightly expressed the fear that "the Perry case could permit state officials who disagree with the results of ballot initiatives to routinely walk away from them in a way that thwarts the purpose of the initiative process."  Cohen then predicts, "I'm not much into guarantees, especially with this Court, but I guarantee you that the Perry case will be cited for this technical proposition far more quickly and more often than it will be cited as any sort of victory or defeat for same-sex marriage advocates."

I fear that Mr. Cohen and Justice Kennedy are correct.  Regardless of one's position on same-sex marriage, today's decision in Perry is a victory for the power elites who hold sway in Sacramento and a defeat for California populism.