After much fanfare, it turns out that California’s Proposition 8 marriage case at the Supreme Court morphed into something other than a marriage decision. In a 5-4 vote, the Court dismissed the case, finding petitioners, the official proponents of Prop. 8, lacked standing to bring the case in the first place and, therefore, never get to discuss the merits (the constitutionality of the state’s marriage amendment).
Yet the impact of the decision cannot be overstated. The Court’s opinion is just as significant as a decision on the merits would have been, if not more, as they struck a heavy blow at Democracy itself. The bottom line is that the vote of the millions of Californians who voted to preserve marriage as the union between one man and one woman was invalidated. The will of the people is, once again, frustrated by unelected judges.
That is not to say that the issue of marriage did not impact the Court’s actions. It most certainly did. Justice Anthony Kennedy, writing for the four dissenting justices, alluded to it saying, “Of course, the Court must be cautious before entering a realm of controversy where the legal community and society at large are still formulating ideas and approaches to a most difficult subject. But it is shortsighted to misconstrue principles of justiciability to avoid that subject.”
The dissent suspects, as do we, that the majority simply looked for a way to avoid the constitutional question before them, to allow more time for the country to “evolve,” knowing they are likely to see more cases on the topic soon. Looking at the majority’s composition, some justices might have worried about the Court’s ultimate decision on the merits, especially in light of the Defense of Marriage (DOMA) decision they handed down on the same day. This is not what the Court is supposed to do. As the dissent points out by quoting the California Supreme Court, “The question before [the Court] involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter.”
And that is the point here. Five Justices of the Supreme Court have just compromised the entire initiative process with this decision.
First, a short history of the case is needed. The issue of protecting marriage in California (for purposes of our discussion) goes back to Proposition 22, the precursor to Prop. 8. Proposition 22 was the first initiative brought by the people of California to define marriage as the union between one man and one woman in state law. Californians passed it with 61% of the vote.
They were forced to do so, because their elected officials refused to listen to what the people wanted. And this is paramount. That is the aim of the initiative process, to allow the people to govern themselves so that they can ultimately take action when elected officials refuse to do so.
With Prop. 22 passed, if homosexual activists wanted to change the law, they just needed to pass their own initiative. Democracy at work!
But that is not what happened. Homosexual couples sued in court, claiming Prop. 22 violated the state constitution. And the State Supreme Court eventually ruled in their favor, throwing out the peoples vote and imposing “gay” marriage by judicial fiat.
Then, for the second time, the people of California rose up to pass, by another initiative, a state constitutional amendment protecting marriage as the union between one man and one woman: Proposition 8. Now the State Supreme Court was not able to say that the traditional definition of marriage violated the state constitution, since the definition of marriage was now a part of the state constitution. Once again, if homosexual activists wanted to pass their own initiative to do away with Prop. 8, they could. But they preferred to go to their old friends at the court again – this time to federal court arguing Prop. 8 violates the U.S. Constitution.
That is the case that eventually reached the U.S. Supreme Court. At the first level, though, the district court level, state officials (who never wanted to pass the law in the first place) refused to defend the people’s initiative. So the official proponents of Prop. 8 stepped in to defend the law.
One legal question arises then: Can the official proponents of an initiative in California defend the law when elected officials refuse to do so?
That question (stay with me here) was submitted to the California Supreme Court, and they decided that California law indeed gives the authority to the official proponents of an initiative to defend the law when elected officials refuse to do so. The state supreme court said, “it is essential to the integrity of the initiative process” that “the official proponents of an initiative (in light of their unique relationship to the initiative measure under [California law])” be able to “assert the state’s interest in an initiative’s validity on behalf of the people when the public officials who normally assert that interest decline to do so.”
The district court, therefore, allowed the proponents of Prop. 8 to defend the law and declared, ultimately, that Prop. 8 violated the U.S. Constitution. The Ninth Circuit affirmed the district court ruling and the U.S. Supreme Court granted cert. to hear the case.
But in their opinion, the majority of the justices refuse to accept California law and impose on states a new standard that requires the same state officials who want to do away with the law to defend it. The Court deems the official proponents of Prop.8, who were duly empowered by state law to defend the initiative, as simply “concerned bystanders.” It says that the official proponents do not meet the definition of “agents,” which the Court now imposes as a legal standard on those the state designates to defend their initiatives in federal court.
The Court relies heavily on the fact that, “The most basic features of an agency relationship are missing here. Agency requires more than mere authorization to assert a particular interest. ‘An essential element of agency is the principal’s right to control the agent’s actions.'” But the Court fails to see that this is precisely what California law is designed to avoid, for if the elected officials who want proponents to lose become the very people that control what the proponents can and can’t do, it defeats the whole purpose of the initiative process. They would want their “agents” to lose. And since they have the power to control their arguments, they will most likely accomplish that goal. Losing in court is not that difficult. The dissent said it this way:
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.
In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government.
The majority effectively gives elected officials veto power over the people with this opinion – an effective veto on any future initiative, not just in the case of marriage.
The dissent again zeroes in on the issue:
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.
The Court, therefore, leaves a district court decision (the lowest level federal court) immune to appellate review. On this specific case, it is that district court decision declaring Prop. 8 unconstitutional that stands, therefore, frustrating the will of Californians who voted to protect marriage. The dissent finally concludes that, “The Court’s opinion disrespects and disparages both the political process in California and the well-stated opinion of the California Supreme Court in this case.”
This is simply too high a price to pay in order to buy a little more time before having to rule on the constitutionality of laws protecting the traditional definition of marriage.