Why the California State Supreme Court’s Decision Is A Good Thing

A commentary

Jim Burroway

November 17th, 2011

Of course in my heart I wanted today’s ruling by the California Supreme Court to go differently than it did. But in my head I had little doubt about the outcome. In ruling that Prop 8 proponents have legal standing to defend their handiwork in court, the court established a precedent that upholds the spirit of California’s system of initiative and referendum. It also, if taken to what I believe should be its logical conclusion, can become a starting point for reforming some of the worst abuses of California’s initiative process by holding proposition supporters accountable for the propositions they’ve foisted on the state.

California’s initiative and referendum was initially implemented as part of a broader political reform movement intended to give citizens the ability to make the laws that their elected officials refused to do. In theory, that sounds like a very good idea, I think most of us can agree that its practice in California has been a disaster. The patchwork of accreted propositions over the decades have made the state effectively ungovernable, while the initiative process itself has been hijacked by powerful special interest groups who pump multiple millions of dollars into the campaigns to get their favorite measures approved. Prop 8 alone came with a price tag of more than $83 million. With that kind of money, the citizen-legislator that the initiative and referendum system was supposed to empower hardly matters any more. The obscene sums spent on various propositions by powerful interest groups makes the whole idea of harnessing the collective wisdom of citizen-legislators, well, sad. Look at what all that money got us: a discriminatory law written into California’s Constitution in a process that leveraged prejudices and fear to win votes.

It’s no wonder then that when Americans For Equal Rights sued to overturn Prop 8 on constitutional grounds, the state stepped aside and said they wouldn’t defend it. And why should they? Prop 8 wasn’t Sacramento’s doing. It was the product of anti-gay activists who put the proposition on the ballot and spent millions on a campaign pitting Californians against fellow Californians. Why should the state defend Prop 8 supporter’s pet cause?

In fact, why should the state defend anything they didn’t enact in the first place? And furthermore, in the spirit of citizen initiative and referendum, why would anyone want the state to defend something they had no hand in creating — whether it’s Prop 8 or any other proposition that had passed without the state’s support? The California court examined those questions and observed, “Because of their special relationship to the initiative measure, the official proponents of the measure are the most obvious and logical private individuals to ably and vigorously defend the validity of the challenged measure…” 

I think they’re on to something, and the Prop 8 case is a great example. When the state stepped aside and said they wouldn’t defend Prop 8, Federal District Judge Vaughn Walker let Prop 8’s supporters defend the law in his court. And look what we got: a mess so embarrassing that the defendants themselves have been fighting hard to keep the trial’s videotapes out of public view. Prop 8 supporters won their electoral campaign by playing on the worse prejudices against LGBT people, only to have to try to deny in court that prejudice played any role in the campaign. That didn’t work. They tried to claim that social science argued against same-sex marriage. That effort completely fell apart. After Prop 8 was ruled unconstitutional, Prop 8 supporters tried to claim that because Judge Walker was gay, his ruling should be overturned. That didn’t work either.

If you ask me, holding Prop 8 supporters accountable for their proposition has been nothing but a big plus for our side. Remember, these are the guys who are “the most obvious and logical private individuals to ably and vigorously defend” Prop 8. Don’t you just love it?

So if I had a complaint against the California State Supreme Court ruling, it would be that it doesn’t go far enough. I think state officials should be prohibited from defending any proposition placed on the ballot via citizen initiative. That burden should be borne by those who campaigned for the proposition’s passage. If they think it’s just a great idea during the campaign, they also ought to be able to explain why it’s a great law in court. And if they can amass the millions of dollars it took to win passage of their pet proposition, then they can stick around after the election to defend the law — and to raise the money for the legal bills — if it lands in court.

This could open the door to some substantive reform in California’s initiative and referendum process. If a campaign knew that they may be called upon to defend their handiwork in court, maybe they’d think twice about their efforts. Maybe they would more carefully consider the ramifications of their proposals before election day if they knew they’d have to defend them after election day. Maybe they would think twice about exploiting irrational fears and prejudices against a minority if they knew they’d have to explain how their law wasn’t irrationally fear-based and prejudiced in court. And yes, maybe monkeys might fly out of my butt. But holding people accountable for their actions has never been a bad thing. It has worked pretty well so far with Prop 8.

Mark F.

November 17th, 2011

Well said, Jim.

Timothy Kincaid

November 17th, 2011

I share your frustration with California’s initiative process and agree that reform is long past due. I live here. It’s insane.

However, this decision does not reform the process, it further empowers the special interest groups who profit from it. It takes the last vestige of restraint from the process and replaces civil servants with the best attorney that money can buy.

And I think you err in one of your underlying principles:

In fact, why should the state defend anything they didn’t enact in the first place? And furthermore, in the spirit of citizen initiative and referendum, why would anyone want the state to defend something they had no hand in creating – whether it’s Prop 8 or any other proposition that had passed without the state’s support?

Because “the state” is not Sacramento. It’s not the legislature. It’s not the administration. The State is the people.

The intitiative – should we be so foolish as to pass it – belongs to us. We are not bystanders.

And it is only right and proper that those who defend the vote of the people be elected by the people and be answerable to the people.

Yes, Prop 8 turned out to be an embarrassment for the Proponents. But only because members of our community sat in the courtroom and live-blogged. Only because we re-enacted the trial on stage. Only because we demanded the transcripts and tapes.

If this were an initiative over, say, water rights, then no one would know or care what happened in the courtroom until they turned the faucet and nothing came out. If there is no Governor or Attorney General to say, “you elected me, and on your behalf I’m not defending this swindle so vote me out if you disagree,” then the state really is up for sale.

Timothy Kincaid

November 17th, 2011

And I want to remind Californians of Prop 187 in 1994, which restricted publicly funded healthcare, education, and other social services to those who were legally in the country. A federal judge found 187 unconstitutional.

Governor Wilson appealed the ruling, which brought the case to the federal Ninth Circuit Court of Appeals. But in 1999, the newly elected Democratic Governor Gray Davis had the case brought before mediation. His administration withdrew the appeal before the courts in July 1999, effectively killing the law.

Under this new ruling, those who supported the law would have had the right to appeal the decision and to seek the limitation of state expenditures to legal state residents. Unlike Prop 8 Proponents, they were not the clown parade.

Davis decided to pull the appeal. He thwarted the will of the people. And it likely contributed to Gray Davis being only the second Governor in the 20th century to be recalled.


November 17th, 2011

If *only* the organization which put the proposition on the ballot could defend it, what would happen when a challenge comes after that organization dissolves?


November 17th, 2011

Well you and Tim seem to disagree!

As a CA resident I can attest first hand that our proposition/referendum system is glaring evidence that direct democracy doesn’t work. The masses are ignorant asses who (most of the time) believe whoever spends the most money or plays on the most fears. Its no wonder that our founding fathers purposely put decision making powers in the hands of elected officials (not that they do much better)


November 18th, 2011

I’m compelled to agree (kicking and screaming) with this decision. Structurally, it makes sense. Like you, I think the Prop process has been insane — it hasn’t solved any of the structural legislative problems in the state, but it has created entirely different and far more severe problems through the use of well-funded campaigns the play on populist (and uninformed) public sentiment. Prop 8 is just one of many.

That said, any other decision today would have been patently illogical from a structural perspective, and that inevitably leads to accusations of “legislating from the bench”.

Agree with you whole heartedly.


November 18th, 2011

Sorry, this just reminds me of the Winston Churchill quote “it has been said that democracy is the worst form of government except all those other forms that have been tried”.

We have an initiative system here in Washington State as well, and while I would agree with you that most initiatives are done by special interest groups with a lot of money, not all are. A few still are done by small groups with a good idea. To that end, I think your idea that the government should be prohibited from defending initiatives in court is a poor idea. Individual citizens may not have the resources to defend the law in court, and so it would be the smaller initiatives that would suffer, not special interest groups that can raise $83 million to pass the law in the first place. They have the resources to bring it to court, not the little guys.

I agree with the rest of your post though, it was a good ruling.


November 18th, 2011

I’m happy for this ruling for an entirely different reason. WHEN the Ninth Circuit rules in our favor, the ruling will likely apply to the entire ninth circuit instead of just to California. Overnight we very well could have marriage equality not only in California but also in Oregon, Washington, Alaska, Hawaii, Idaho, Montana, Nevada and Arizona, increasing the number of marriage equality states by MORE that double from five (plus DC) to 13 (plus DC)! That would put over 25% of the states in the marriage equality column. THAT’S HUGE!

Jay Jonson

November 18th, 2011

I think the California Supreme Court ruling is the right one. I read all 72 pages of it, and the unanimous decision seems well reasoned.

What I object to is the Ninth Circuit referring the question to the California Supreme Court in the first place. The question of standing in a federal court is not the same as standing in a state court (though, as the California Supreme Court pointed out, they are related). And, most important, the Ninth Circuit is not bound by the decision of the state court.

In referring the question to the California Supreme Court, and giving them a year to answer it, the Ninth Circuit wasted precious time. Their indifference to our being deprived of a fundamental constitutional right to marry is outrageous.

Regan DuCasse

November 18th, 2011

There are many in this state with short memories on how the entire process of Prop. 8 actually went.

Perhaps the supporters of 8 are going to count on that and hope that the reason they are in court in the first place will be forgotten and they’ll use another victim/crybaby strategy like “the state made us defend 8 ourselves, and that’s why we don’t have the evidence we want and need, the state HID it!”
Or…”we haven’t had time to amass the evidence we need, because the state didn’t allow us all the time required to make our evidence strong enough!”

The reason they even grasped at the standing technicality, is because they made the claim that the AG’s office NEVER defended 8 at the time they should have.
Which is actually a lie.
The AG’s office reps DID appear in Walker’s court, along with two attorneys from 8’s supporters. The AG’s reps didn’t have any more luck with witnesses or evidence than 8’s supporters did.
The SUBSEQUENT appeal’s trial regarding standing was where the AG was a no show. And gave the reason as an expensive and time consuming exercise in a waste of time.
Considering our state is broke and doesn’t have a lot of resources to alot to a court issue which is basically kind of FRIVOLOUS, their reasoning not to apply any more resources to a losing case was fair.
The opposition seems to have bottomless financial resources to try their cases, so the state gives them the go ahead and good luck.

There were only two, personal quality of life measures on the ’08 ballot. One had to do with parental notification and accompaniment to an abortion, and the other was Prop. 8.
Prop. 4 won by a landslide and was essentially ignored by NOM and other anti abortion proponents.

Note they haven’t tried to fight THAT anywhere in court or even brought it up in their anti gay campaigns.

The singlemindedness of the anti gay activity is telling in itself. They will bring what are the equivalent of frivolous lawsuits, file bogus police reports, claim threat and fear, or turn the purposes of the marketplace and free association into a conspiracy of taking away THEIR rights all the while taking away the rights of gay citizens.

I don’t have a short memory. But a short memory is ripe for revision and reinterpretation of the facts.
8 supporters are trying to draw blood from a stone, and will inevitably blame the courts, judges and gay people for not being able to get what they want from a process not intended for that purpose.

It’s my fervent hope that at some point, SCOTUS will remind 8 supporters that the Constitution’s use cannot be for tyranny against a minority, nor the expansion of discrimination.
And that ANY of their arguments have no basis in the law at all.
The way the IA court came to that conclusion as did Walker.
Let’s hope.

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