The Supreme Court’s decision in Windsor got the attention of the day yesterday, if not the attention of the Term, even if it doesn’t instantaneously make same-sex marriage the law of the land. Shelby County’s Voting Rights Act ruling was historic, but not as historic as it might have been. Section 4’s formula was struck down, but with Section 5 still in place, Congress has an opportunity to redraft an alternative. Fisher’s remand was no mighty victory for either side of the affirmative action debate. It emphasized that strict scrutiny review demands that UT get less deference than the Fifth Circuit panel gave the school. But we really know that this week’s opinion just kicks the can down the road, teeing up next Term’s Schuette v. Coalition to Defend Affirmative Action.

In important ways, Shelby County and Fisher, and in slightly different ways Windsor, keep us talking. Talking about hard issues, but talking. That’s part of the tough stuff of democracy. But SCOTUS’s decision in the California Proposition 8 case, Hollingsworth v. Perry, shuts down democratic dialogue in a way that should make all of us wince. I would rather listen to a thousand screaming Mystals argue about affirmative action through the end of OT 2013 than live with the consequences of this week’s decision in Hollingsworth . . . .

Here’s the background in Hollingsworth. In 2008, the California Supreme Court ruled in In re Marriage Cases that the California Constitution prohibited denying same-sex couples the right to marry. In response, several organizations, including ProtectMarriage.com, pushed to use the state’s ballot initiative system to amend the California Constitution to define marriage as only between opposite-sex spouses. Proposition 8, the ballot measure, passed with the support of a majority of California voters in November 2008.

Several same-sex couples who had been married during the window when such marriages were legal brought suit, challenging the constitutionality of Prop 8. U.S. District Judge Vaughn Walker ruled that Prop 8 was unconstitutional. The governor and attorney general had no interest in defending Prop 8 on appeal . . . since the ballot initiative hadn’t been their idea in the first place. (If it had been, the proponents of traditional marriage probably wouldn’t have needed to go through the referendum process in order to get their way.) So, Prop 8 proponents sought to appeal Walker’s ruling themselves.

Before the Ninth Circuit addressed the merits, it certified a question to the California Supreme Court, asking whether the supporters of a ballot initiative had standing to defend a law they helped enact. The state Supreme Court said they did. The Ninth Circuit panel then found that the Prop 8 supporters had standing, though the panel further held that Prop 8 violated the equal protection rights of California’s same-sex couples. When SCOTUS got hold of the case, folks on both sides of the marriage debate hoped that the Court would use its decision to address the merits question of same-sex marriage. Alas, it was not to be.

By a 5-4 majority, the Court held that the supporters of Prop 8 lacked standing to defend the initiative in federal court, even when the California AG refused to so. Chief Justice Roberts wrote for the majority, joined by Justices Scalia, Ginsburg, Breyer, and Kagan.

The Chief writes:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

Justice Kennedy dissented, joined by Justices Thomas, Alito, and Sotomayor. Justice Kennedy writes of the majority:

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.

He continues:

The Court concludes that proponents [of Prop 8] lack sufficient ties to the state government. It notes that they ‘are not elected,’ ‘answer to no one,’ and lack ‘a fiduciary obligation’ to the State. But what the Court deems deficiencies in the proponents’ connection to the State government, the State Supreme Court saw as essential qualifications to defend the initiative system. The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials. [ . . . ] That historic role for the initiative system ‘grew out of dissatisfaction with the then governing public officials and a widespread belief that the people had lost control of the political process.’ The initiative’s ‘primary purpose,’ then, ‘was to afford the people the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt.’ The California Supreme Court has determined that this purpose is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding.

As infrequently as I may write these words, Justice Kennedy is right.

I lived in Palo Alto and San Francisco for a few years. Lord knows that I loathed much of what the California electorate liked. That’s a reason to move out of California, not a reason to contort Article III justiciability doctrine until the state referendum system becomes a mere kabuki.

This isn’t “traditional marriage” sour grapes talking. This is (little “d”) democratic indignation talking. As both the California Supreme Court and the dissent in Hollingsworth acknowledge, “the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter.” What is truly horrible about Hollingsworth has nothing to do with same-sex marriage. It has everything to do with the effect this decision will have on the democratic process in the 27 states with ballot initiative systems.

After Hollingsworth, in any ballot initiative state, the governor and attorney general have what the dissent rightly calls a “de facto veto” over ballot measures. So, the people, frustrated that their elected officials are not passing legislation that voter’s want, pass a ballot initiative. When the new law is challenged in federal court, all the elected officials have to do is . . . nothing. If they don’t defend the law, no one can. The initiative supporters, even after they have spent time and money gathering signatures and persuading a majority of their fellow voters, lack standing in federal court. The work of direct democracy dies a quiet, non-justiciable death.

Hollingsworth signals bad things for the democratic process in the 27 states that rely on referendum systems to effectuate the will of voters when the state’s elected officials are unresponsive. Given the Court’s ruling this week, the most that dissatisfied citizens can do is wait for the next election and vote out of office the officials who refuse to follow the views and values of the people they supposedly serve. Rulings like the one in Hollingsworth make me wish that dissatisfied citizens had the same opportunity with at least five Article III justices.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. She has clerked on the U.S. Court of Appeals for the Fifth Circuit and worked as a researcher for multiple projects on the intersection of cognitive science and law, including Baylor College of Medicine’s Initiative on Neuroscience and the Law. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at [email protected]


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