Prop. 8 ruling raises fears about effects on other initiatives

SACRAMENTO — Activists on both sides of the bitter fight over same-sex marriage managed to agree on one thing in the wake of Wednesday’s U.S. Supreme Court decision.

The justices, they said, set a worrisome precedent by giving elected officials undue power over ballot initiatives.


The court essentially voided Proposition 8, a measure placed on the state ballot by foes of gay marriage and passed by voters in 2008. The justices said supporters of the initiative had no standing to defend the measure after state leaders — who opposed the law — had refused to do so.

Their reasoning drew a testy dissent from Justice Anthony M. Kennedy, a Sacramento native, who wrote that the decision “disrespects and disparages” California’s political process — a staple of which is the ballot initiative.


The court, Kennedy wrote, did “not take into account the fundamental principles or the practical dynamics of the initiative system in California.”

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.”

Proposition 8 had been ruled unconstitutional by federal judges, and supporters of the ban appealed to the U.S. Supreme Court. Lynda Gledhill, a spokeswoman for state Atty. Gen. Kamala Harris, said state officials have refused to defend only one initiative in the past — Proposition 14, passed by voters in 1964 to overturn fair housing laws.

Then-Gov. Pat Brown — the current governor’s father — said the initiative was discriminatory. The U.S. Supreme Court ultimately struck it down.


On Thursday, the younger Brown downplayed concerns about the Proposition 8 decision, saying a case with similar circumstances was “very, very unlikely to occur again.” He added, “If it does, we’ll be able to deal with it.”

State Senate leader Darrell Steinberg (D-Sacramento) said Brown and Harris were right to opt out of the court fight.

“No public official has the duty to enforce laws that are unconstitutional,” Steinberg said, adding that voters who disagree with officials’ actions can vote them out of office.

That seems unlikely as more Californians support gay marriage. A recent USC Dornsife/Los Angeles Times Poll said 58% of registered state voters think such unions should be legal, with only 36% opposed.

Many other states, including Oregon and Washington, have initiative processes that could also be affected by the Supreme Court ruling, said UC Davis law professor Vikram Amar.

“This is a problem for the 20 or so states that have direct democracy,” Amar said. “That’s a huge chunk of the country.”

California’s initiative process, created more than a century ago, allows residents to collect voters’ signatures to place proposals on the ballot without support from elected officials. The move toward more direct democracy was led by Gov. Hiram Johnson at a time when corrupt and wealthy railroad interests dominated the Legislature.

Initiatives on lightning-rod issues regularly appear on modern ballots, and others besides gay marriage have led to lengthy legal battles. Proposition 187, approved by voters in 1994 to block illegal immigrants’ access to public services, was struck down in federal court, for example.

Although Republican Gov. Pete Wilson appealed the decision, his successor, Democratic Gov. Gray Davis, was able to void much of the measure by reaching a settlement with civil rights groups in 1999.

Good-government groups, state lawmakers and others have called for changes in initiative rules in recent years, saying the procedures lead to poorly drafted laws and empower the same special interests the system was supposed to circumvent.

Brown used an initiative last year to obtain temporary tax increases. The Legislature and governor can raise taxes on their own, but Brown promised when he ran for governor that he would let voters decide. Unable to persuade Republican lawmakers to help him put the question on the ballot, he and his supporters collected petitions to place it there.

Activists are already lining up support for initiatives for next year, including proposals for new taxes on oil extraction and tobacco and one to reduce public funds in political campaigns.

Justin Levitt, a constitutional law professor at Loyola Marymount University, said California’s penchant for initiatives can withstand the Proposition 8 decision, even as it might tweak the balance of power between voters and elected officials.

“It provides for one more check on the initiative process,” Levitt said, “and that is to have a state official ... decide how vigorously to defend on appeal. That still leaves a pretty powerful initiative process.”


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