Ballot Initiatives

How Concerned Should Ballot Initiative Lovers Be About the Prop. 8 Punt?

Does it give states coverage to simply ignore the people's wishes?


Please space out the weddings so your friends don't go broke buying gifts
Credit: Katie_Kullen / / CC BY-NC

In a 5-4 split that put the Supreme Court justices together in an unexpected combination (Roberts, Scalia, Ginsberg, Breyer and Kagan against Kennedy, Thomas, Alito and Sotomayor), the court determined yesterday that the proponents of California's Proposition 8 did not have standing to defend the constitutionality of the amendment banning recognition of gay marriage.

It's an unusual case because California's governor and attorney general refused to defend the proposition once it was challenged. The state allowed the private proponents of Proposition 8 to defend it in court, but it was struck down by the U.S. District Court of Northern California, a decision that was upheld by the Ninth Circuit Court of Appeals.

Here's how SCOTUSblog summarized the Hollingsworth v. Perry decision:

The challenge to the constitutionality of California's Proposition 8, which bans same-sex marriage: After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case.

In response to the ruling, I've read people worried this decision would make it easier for elected officials to shut down reforms caused by ballot initiatives simply by refusing to enforce or defend them and leaving proponents with no alternative. Justice Anthony Kennedy worried as much in his dissent:

The Court's reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied. The Court's decision also has implications for the 26 other States that use an initiative or popular referendum system and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation. …

"There is much irony in the Court's approach to justiciability in this case. A prime purpose of justiciability is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state officials whose preference is to lose the case. The doctrine is meant to ensure that courts are responsible and constrained in their power, but the Court's opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed. And rather than honor the principle that justiciability exists to allow disputes of public policy to be resolved by the political process rather than the courts, here the Court refuses to allow a State's authorized representatives to defend the outcome of a democratic election."

So should we be worried? Could the reverse – voters approve gay marriage recognition only to have the state refuse to back it – happen? What if the voters approved term limits for state legislators and they just ignored it?

The majority decision was not unsympathetic to the argument (incidentally, it's interesting to see how polite these arguments are when you end up with such an unusual combination of justices on each side) but firm in that: 1) Getting a ballot initiative passed does not make you an agent of the state with standing; and 2) If you aren't an agent of the state who is expected to defend the law, then you have to have proof of a personal harm and the proponents do not. Arguably, if the situation were reversed (the state refusing to defend an initiative recognizing gay marriage), it's easy to see how they could allow standing and the outcry that would cause. A person denied a marriage license from a same-sex ballot initiative may be able to prove harms from discriminatory policies and earn standing. But that's a fight for another day – The Supreme Court declined today to take up some additional gay marriage lawsuits for the next session.

You can decide for yourself how concerned you should be about the ballot initiative process by reading Hollingsworth v. Perry here (pdf).

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  1. Of course, the point that other people getting married doesn’t “injure” you just because you’re an asshole seems to be lost on the wailing-and-gnashing-of-teeth crowd.

    1. True, but that point cuts both ways. Your friend being allowed to bring over a foreign hottie because she is his wife doesn’t harm you; at worst you’re not getting a special benefit. You would not necessarily have standing as an injured party.

      Besides, many ballot initiatives are not about *rights*, persay, but about structure of government. CA’s AG could very well decided, for example, to decline to defend the ballot measure requiring a supermajority to raise taxes and apparently the Supreme Court would decline to review the case; a citizen would have no recourse in the face of such shenanigans.

      1. He would have a recourse : the Supreme Court of California

      2. They could go to the state courts of course. In fact, most state constitutional issues don’t raise federal issues in any case, so they usually can’t make it to federal court.

      3. My friend getting married doesn’t hurt me, but if I apply for a marriage license and am turned down, that is a legal injury. I petitioned the government for something, it said no, and now I get to make the case that the government is in fact legally required to give me that thing.

        The problem for the Prop 8 supporters vis-a-vis standing is that Prop 8 doesn’t actually give them anything; it just denies things to other people.

        1. But they really really really don’t want those other people to have those things.

  2. Everything is always worrying!

  3. “What if the voters approved term limits for state legislators and they just ignored it?

    Then our only option would be to send in Badpiper:…..s-thu.html

    1. Fuck me – my wife showed me this the other day.

      IT’S A FUCKING ABOMINATION AGAINST THE INSTRUMENT! But kind of funny if you like shit like that.

      I gotta go listen to Willie McCallum play “The King’s Taxes” or “The Big Spree” to cleanse my audio palate….

      /piping purist

    2. Even better – my old band playing a good, old-fashioned MSR. Suck it, Fire Piper.

    3. What if the voters approved term limits for state legislators and they just ignored it?

      California Legislator: “Wait, we can do that?”

  4. “””It’s an unusual case””

    The same thing happened with Prop 187, the governor stopped appealing it in court after a federal court ruled it unconstitutional. Laws are not for little people to write, they are for professional politicians and people who wear robes to work.

  5. Ballot initiatives are the stinky remains of the progressive era, and should have been hauled away and buried with the League of Nations. It’s a ‘do over’ for voters who don’t vet their candidates.

    1. Candidates lie and are motivated by factors other than what their voters sent them there to do.

      Switzerland seems to get along just fine with an even more extensive initiative process than our own.

      1. Candidates lie and are motivated by factors other than what their voters sent them there to do

        Then unelect them. Why have an elected lawmakers plus direct democracy? If your elected legislature has become corrupt and doesn’t work, it’s time for a constitutional convention.

        1. Because running a state government entirely through direct democracy is impossible but elected representatives are not ideal? There’s no clearer way to establish consent of the governed (or a majority of them, anyway) than to take a law and give people the opportunity to vote on it. It’s not feasible for the day-to-day, of course, but that doesn’t make it invalid for some types of law.

          What is wrong with ballot measures?

        2. Nope – got the ballot initiative in Michigan, and like it.

          Yeah, it can cut both ways – but mostly it’s been a good tool to get the dickheads in Lansing back in line until we can vote their dumb asses out (or they get term limited, cause we’re so fucked up we have to have an Auto Eject Feature in the Great Lakes State).

        3. it’s time for a constitutional convention.

          “We the State Supreme Court find your referendum for a constitutional convention to be unconstitutional.”

          1. “…also, unconventional.”

        4. Given the twistiness of legal strategies and tactics displayed in this case alone, I most definitely do NOT want a Constitutional Convention, as we are likely to be as hog-tied in BS as the poor bastards in the EU are. What we NEED is understanding of and fidelity to the Constitution we have. Maybe we need to prune away some of the unsightly overgrowth it has acquired: 16th and 17th Amendments, anyone?

          1. I’ve got scissors and whiteout. Maybe redacting with a big SirMarksaLot would be more appropriate?

      2. Switzerland seems to get along just fine

        Doesn’t count as the Swiss can masterfully engineer anything.

  6. Yeah, I think this is precisely wrong. If you (the chief backer of the initiative) win the referendum, you should be an “agent” of the state since you are defending a legitimately constituted piece of legislation.

    What happens in 2016, when California legalizes weed and the Feds threaten to pull funding (e.g. drug-free workplaces act) and the Gov., Lt.G, etc simply refuse to enforce the results of the initiative?

    1. Then delicious tears as the standing issue cuts the other way.

  7. It is good that Reason is acknowledging that the ends don’t always justify the means. Reason has made original intent arguments for everything from health care to email hacking, but I have yet to see an argument that the founders intended for homosexuals to get the same government benefits married people get. It is all “it might gays feel like they aren’t normal.”

    1. Cool story bro.

      1. Blast I just said that in another thread and now I’m going to look like a biter.

    2. I know, right? For a magazine called “Reason”….

    3. It doesn’t matter if the founders intended for homosexuals to get the same benefits as straight couples (and states didn’t even grant marriage licenses the time of the founding). What matters is that they didn’t give the feds the power to override state laws relating to and defining marriage. There’s nothing in Article I, Section 8 that justified Section III of DOMA

    4. So what? The founders didn’t see marriage as a federal matter, and it is not mentioned in the Constitution at all.

    5. I’m a big supporter of state rights, but I find the federalism argument in the majority opinion to be bogus. Section 3 of DOMA does not restrict a state from using any definition of marriage any state wants for state law purposes. It defines marriage only for federal law purposes. Why would Congress lack the authority to determine the eligibility requirements (assuming that those requirements are not unconstitutional for equal protection or other reasons) for federal programs?

      1. Because they aren’t given the power to define the word “marriage.” If they want to make that a requirement for something, they have to rely on state definitions of the word. That’s who was given the power to deal with marriage, under the Tenth Amendment. If the Feds don’t like it, they’re free to amend the Constitution (with the approval of state legislatures)

  8. California law, as interpreted by the state high court (and the federal courts say they must defer to such decisions) says that ballot proponents are the agents of California for purposes of defending an initiative if the duly-elected agents fail to defend it. Whether the proponents have incurred an injury is not the point; the state gets to select its own agents.

    The USSC got hung up, as the dissent suggested, because California doesn’t follow conventional agency principles. But it didn’t have to.

    1. California law permits the ballot proponents to defend the initiative, but whether a person has standing in federal court is a matter of federal law. A state can give the ballot proponents standing to litigate in its own state courts, but it has no authority to change the standing requirements for federal courts.

      1. Wait the SC in the DOMA case has said the Feds have to defer to the states on marriage but they don’t have to for this…BOOOOM. My head just exploded.

        1. Marriage laws are a traditional state function, but jurisdiction in federal court is obviously a federal function.

          The real headache-inducer is trying to figure out how the initiative sponsors didn’t have standing to defend Prop 8, but a committee appointed by the House of Representatives DID have standing to defend DOMA in the other case. It’s more technical than that, but the Supreme Court basically contradicted itself in the two cases.

          1. If the state of California, through its government, says “Person X represents us w/r/t defending such-and-such a law,” then Person X is California’s representative, and, yes, federal courts should acknowledge that.

            The Calif. Supreme Court has said the initiative sponsors represent the state w/r/t defending Prop 8 because the AG and governor refused to do it.

            If the federal courts take it upon themselves to decide who represents a state, second-guessing the state’s own government, then why not refuse to recognize the state Attorney General – “oh, we’re sure the people of California wouldn’t want the AG to defend *this* law!”

  9. Could an initiative’s text include a statement designating responsibility for its defense to a specified non-state entity?

    1. So….Thor? Or Spiderman?

  10. It’s a moot point that Democrats have supermajority in state legislature right now to undo Prop 13. But just imagine if Jerry Brown decided not to defend Prop 13 all those decades ago.

  11. If you aren’t an agent of the state who is expected to defend the law, then you have to have proof of a personal harm and the proponents do not.

    This is such a mindfuck. Leaving aside the fact that CA did in fact designate these people as agents of the state, this creates the exact same “no one can ever possibly have standing” issue that we see with all sorts of run-of-the-mill unconstitutional bullshit that passes and can’t be challenged because simple status as a taxpayer isn’t enough to claim standing. E.g., Congress votes to have a national day of prayer, or honor someone, or just generally legislate outside the powers granted in the constitution, typically no one will ever have standing to challenge this stuff because no one is materially harmed other than by having to pay for Congress to do illegal bullshit. The harm here is clear: we passed a constitutional amendment and now everyone is pretending it’s not the fucking law. But that’s, insanely, never good enough to sue over.

    1. You didn’t pay for this article, so you don’t have standing to complain.



  12. I suspect this ruling will have long term consequences.

    What exactly will happen if a newly elected Executive stops defending laws he doesn’t support? Say a new tax. If a state doesn’t defend in court a challenge to a tax, does it automatically void the previous law. Does the tax go away without any legislative approval?

    1. There may be ways that courts can get around this. For example, a court usually issues a default judgment when a defendant either doesn’t show up in court or doesn’t argue against the plaintiff’s position. However, courts will often still examine the plaintiff’s argument independently, and they’re not required to issue a default judgment if the case simply isn’t there.

  13. OK, let’s discuss.

    In the Windsor case, the Court struck down Section 3 of DOMA, a federal law, despite the fact that the Executive, charged with enforcing federal law, had decided not to defend it. The majority found that there was a justiciable controversy despite this, and Scalia vigorously dissented on this point.

    But in Hollingsworth, when the Governor of California did essentially the same thing to a ballot initiative that Obama did to DOMA, a majority said the case was not justiciable because the state was not defending the initiative.

    Kennedy and Scalia, on opposite sides of each case, were at least consistent on this issue. Sotomayor was consistent too. Not so Breyer, Ginsberg and Kagan, who went with Kennedy in Windsor and Scalia in Hollingsworth.

    1. Right if the Feds have to accept the legitimacy of same sex marriages from states in which it is legal why don’t they have to accept proponent plaintiffs from states where that’s legal? Basically the SC has said no case featuring proponent plaintiffs can go to the federal level.

    2. That’s the crux of the matter, Number 2. Kennedy contradicted himself, despite all his technical crapola on why the congressional representatives had standing in the DOMA case, but the ballot sponsors did not in the Prop 8 case. I don’t see any principled difference between them.

      They both have a more than background-noise level of interest in the outcome of the case, even if they aren’t going to suffer direct personal harm as a result of the laws (or their overturning).

  14. I am confused now. My understanding of the case was that the voters ended up trumping the State Supreme Court by passing a State Constitutional Amendment. If the Amendment were properly passed, then the State officers are bound by oath to protect and defend it, and the State Courts must respect it. If the Amendment were to be overturned, it could not be in State court, but on Federal Constitutional grounds, requiring a Federal court case. But if the State were not to be a party in the suit, then how could the case go forward at all? How are earlier federal court rulings in this case not vacated all the way back, leaving Gay Marriage illegal under California’s highest law? I suppose the details are buried in the opinion, so I had better get reading…

  15. Also, shouldn’t refusal to defend the properly enacted laws of one’s government (State or Federal) be tantamount to resignation by a high elected official? That’s insubordination (to the respective Constitutions) in my book, and should at least be grounds for immediate dismissal.

    1. According to Scalia, not necessarily. He believes that an executive branch official is doing their job by refusing to enforce or defend a measure they believe to be unconstitutional.

      Not entirely unreasonable, but obviously dangerous ground he’s treading there.

  16. Whatever the stupid reason for denying standing in the Prop 8 case, the result is that now state governments can almost certainly reverse any successful ballot initiatives merely by finding a proper Article III plaintiff to file a federal claim in federal court, and then refusing to defend the suit.

    The agency test is silly.

  17. Why is refusing to defend or enforce a measure that an executive branch official genuinely believes to be unconstitutional dangerous ground? I would argue that it is the opposite. In fact, it is the whole premise behind organizations such as Oathkeepers. The oath of office, regardless of branch, is to support and defend the constitution. I would much prefer government officials who are willing to examine the constitutionality of their actions and exercise restraint, even in the opposition of popular opinion, than officials who believe they are duty-bound to defend and enforce a law simply because it exists.

    1. Would you trust Jerry Brown on the Constitutionality of anything?

      1. Let’s pretend that California voters pass an initiatve calling for the confiscation of privately owned handguns. What is the difference between Jerry Brown’s refusal to defend Prop 8 (assuming that he genuinely believed it was unconstitutional) and a county sheriff who refuses to enforce the confiscation law because he genuinely believes it violates the Second Amendment? If you think the sheriff has the power (indeed even the duty) to ignore the confiscation law, then shouldn’t the governor have the same power with respect to Prop 8, regardless of whether you like him or agree with him on the constitutionality of the law.

    2. I agree with this, although I would add that the court should allow people outside of the government standing to defend such laws in those instances

  18. The Prop 8 loss was a disaster. The SC has ruled that, nationally, propositions that aren’t supported by the state governor are illegal. That’s a big deal. The fuckers who introduced this an argument are the worst thing to happen to the USA since WW2. David Boise and Ted Olson are the worst Americans.

  19. Personally, I’m not a big fan of the initiative process, but if you’re going to have one, it should mean something. The state government shouldn’t be able to override the initiative by simply refusing to defend it, as they did in this case.

    While I understand the reasoning behind the concept of “standing”, I find it’s commonly abused. The Prop. 8 case is unusual only in that it’s a reversal of the normal order. Standing is usually abused to keep BS laws ON the books. See, for example, all challenges to NFA34. The Court won’t hear any challenges from anyone who hasn’t actually been charged under the NFA, but no one is lining up to meet that qualification. Why? If you lose, you not only go to prison, you permanently forfeit your right to legally own ANY firearms, which is kind of a big deal.

    The result? The only people willing to challenge the act are typically people charged with other crimes. Frankly, most of them are scumbags, and not all that sympathetic. Thus, no one gets behind them. People who might actually make sympathetic defendants are highly reluctant to challenge the law. Status quo prevails, yippee!

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