The LA Times writes today that a lot of people share my concern about the Supreme Court ruling that allowed California's Proposition 8 to be overturned. The problem is that the court didn't rule on the merits of the case. They simply decided that after the governor declined to defend Prop. 8, no one else had standing to do so. This means that the district court order overturning Prop. 8 was allowed to stand by default:
Many in the state, regardless of their views on same-sex unions, shared Kennedy's sentiment, fearing that elected officials now have permission to scuttle initiatives they dislike by simply deciding not to defend them in federal court.
"The initiative process, by its nature, is designed to bypass elected officials," said Jon Coupal, president of the Howard Jarvis Taxpayers Assn., a group named for the man who transformed California government in 1978 with Proposition 13, a ballot initiative that reined in property taxes. "Anything that vests power in those elected officials over the initiative process is a dangerous move," Coupal said.
Even Lt. Gov. Gavin Newsom, an early supporter of same-sex marriage when he was San Francisco's mayor and an opponent of Proposition 8, expressed such reservations. "I couldn't be more excited about" the victory for gay marriage, he said. But the justices' action raises "legitimate questions on all sides about the power of elected officials to…trump and deny the will of the voters."
I think these concerns are valid. One way or another, if the people of a state approve a ballot initiative, then they ought to be allowed to defend that initiative all the way to the Supreme Court if necessary. That's just basic judicial fairness.
That said, I do think it's worth pointing out that, in practice, this probably isn't a big issue. The problem with Prop. 8, which banned same-sex marriage, is that it was easy for gay couples challenging the law to show that they were harmed by it. This gave them standing to sue. But the defenders of the law couldn't show that they had been harmed in any concrete way by allowing gay marriage, so they didn't have standing. Thus the ruling.
In real life, this isn't likely to happen very often. Suppose this were a case about an initiative that weakened smog regulations for power plants, and the governor declined to defend the initiative because he didn't want to see those regulations weakened. It would be pretty easy to find a power plant owner to defend the initiative, and it would be pretty easy for the owner to show that overturning the law would cause him harm. In other words, it would be pretty easy to show standing.
This is most often the case. Prop. 8 really was fairly unique in this regard. Normally, someone is helped by a law and other people are hurt. It's only in a case where no one can demonstrate they've been harmed that standing becomes an issue, and that's not likely to happen very often.
I still think this is an issue that California and other states ought to address, though. Erwin Chemerinsky has some ideas here.