Court’s precedent on standing lacks common senseAround the Nation, Politically Aware, This Week Monday, December 12th, 2011
Commentary: Politically Aware
Let’s make a few things clear right off the bat. Yes, I read the entire California Supreme Court decision on Perry v. Brown. No, I am not a lawyer. But I do know that fixing dumb laws is the job of legislators and citizens, not the judiciary, an inconvenient truth the California Supreme Court seems to have conveniently forgotten.
As recently as 2009, the Court seemed to understand this, perhaps too well. In Strauss v. Horton, they ruled that stripping same-sex couples of the right to marry was within the bounds of a constitutional amendment. Given the blurry line between an amendment and a revision, the Court could reasonably have interpreted Proposition 8 away altogether, saying it constituted a large enough change to California’s founding document to require action by the legislature, i.e. an actual revision to the constitution. But instead the court held that Proposition 8 was a legal use of flawed initiative process, writing:
“In a sense, petitioners’ and the attorney general’s complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it.”
Got that? Even if we agree that a law stinks, we can’t fix it for you.
It’s astonishing what two years and some new justices can do. In Perry, the court “found” that the California Constitution allows the proponents of an initiative to represent the state in court challenges when elected officials decline to do so.
Perhaps “invented” might be a more accurate verb than “found” when describing the court’s decision.
My own reading of the California Constitution “found” a general lack of direction about what is supposed to happen when California initiatives are challenged in federal court. I found even less address of what should be done on the rare occasion when the governor, the attorney general and state legislature decline to defend an initiative passed by the electorate. The founders of this state’s trailblazing initiative process failed to envision this scenario – or so it appears. They also failed to envision one where the initiative process would be used to strip away fundamental rights of Californians – instead of guaranteeing them.
It’s not as though this was a secret. Other initiative authors have included a clause in their propositions’ text allowing them to defend their statute once passed. The proponents of Proposition 8 chose not to do so. Maybe they didn’t want people thinking about court challenges and equal protection when they voted. Maybe they felt it would invite a challenge. Or, maybe it was just an – to quote another Perry – “oops!”
Similarly, the authors of the earliest initiative-driven laws could have defined how the executive branch would deal with court challenges. It seems clear; they rather quaintly equated the initiative process exclusively with the legislative, not the executive, branch. But even then – and even now, with Americans dedicated to maintaining divided government to the point of gridlock – is it impossible to think we might want checks on the initiative process? Apparently the state Supreme Court thinks that is impossible.
Because the governor cannot veto an initiative, they opined, it would be a subversion of the whole process to let him do so by not defending the initiative on appeal. Thus far, two governors, two attorneys general, and the named county clerks have refused to defend Proposition 8, making the goal of letting the proposition die under its own hateful weight a broader consensus than one represented by an executive with a veto pen. Furthermore, California voters – assuming they still want Prop. 8 as the law of the land – still have at least two avenues of recourse. One: Pass a new initiative without the “oops.” Or, two: Elect officials who will defend the amendment. Instead, two years after they passed Proposition 8, the same Californians elected Gov. Jerry Brown and Attorney General Kamala Harris, both of whom promised not to defend Proposition 8. Taking the election of both of those vociferously anti-Prop. 8 politicians into consideration; how exactly does this decision protect the rights of voters?
The California Supreme Court’s Perry decision is a setback for the LGBT community, but one that may allow for a broader victory in the federal courts – both directly and by the impact of precedent if things go our way during the next round of proceedings at the federal level.
Sadly, the long-term losers here are California’s executive branch, which lost a constitutional check on initiatives, and stare decisis, the court’s obligation to honor its own precedents.
After all, the same court that refused to recognize commonsense restraints on the initiative process when it stole a fundamental right from LGBT Californians shouldn’t have broadened the interpretation of other Californians’ rights to include an entirely new class of appellate standing.
Regrettably, the only precedent to which Perry adhered to was one we rely on the judiciary to avoid: Given the opportunity, one branch of government will always grab power from the other.
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