As I see it, the referendum process worked just fine in California, too fine you could say. They ended up passing an illegal law. No voters were harmed in the SCOTUS ruling because they improperly were granted standing by the 9th circuit to sue in place of the state. That doesn’t harm the referendum process at all and has little to do with due process. The state had due process, legally, and they fought the challenge and lost. Who says every case must be sued all the way to the SCOTUS? While I am troubled by the implications of how this could be abused, I don’t see it happening much in the future because gay marriage is special in that there are no victims
The difference is that DOMA was enacted by the legislature and Prop 8 was voted on by the people to be defended by their state government. Congress had the power to defend DOMA because they enacted it. The people of California, as Justice Roberts clearly said, did not have standing to challenge the law, they never did. That’s the difference. Once the Governor chose not to appeal, that’s it for them
The Supreme Court never said that. The law could have been perfectly legitimate, but the voters were still denied a voice. That doesn’t sound like due process.
SSM is not unique at all in this situation. Many crimes are victimless in a strict sense, and if the government won’t enforce them in court, then the people don’t have a way to enforce them.
If the legislature passes a law and that gives it standing to enforce it in court, then it follows that if the people pass a law that gives the people standing to enforce it in court. As I said, I don’t believe the legislature, or the people have standing.
People don’t get to vote for a lot of things. You can’t vote to make slavery legal in your state, for example.
The District Court found that the proposition had no rational basis and thus violated the equal protection clause of the Fourteenth Amendment. The referendum was thus unconstitutional. And, as you said, everyone who challenged that decision lacked standing, so that decision stands.
As to whether that is inconsistent with the DOMA ruling, I don’t know. My guess is that the difference is that the U.S. Congress doesn’t have anyone who has the ability to stand in for them. The people of California have two such people: the governor and the attorney general. But California doesn’t require those people to defend against appeals, and they didn’t. Acting as the people’s representatives, they chose not to defend Prop 8. Congress, on the other hand, chose to defend DOMA.
The U.S. Congress are the people’s representatives, and thus have standing, just like the California Governor and Attorney General. The people themselves don’t.
No, the SCOTUS didn’t exactly say it was illegal, but in practical terms, Prop 8 wound its way through the court system legitimately and was eventually nullified. That was a possible outcome from the very beginning. Just because things didn’t end up the way you wanted it doesn’t mean the voters were denied anything. Their voice was raised in the voting and the trial. They don’t get extra voices just because they’re voters, there’s a lot of people involved at every step.
You may think they’re victimless, but I’ll bet you the courts do not. Plus, as a blatant case of animosity towards a minority group, its one of the few remaining “big” laws we have on the books. You’re not going to find similar flaws in other laws
No, you’re trying to circumvent the process by giving voters rights that never existed. While on the surface, it seems that whoever passes the law should have standing, it is simply not feasible to give voters this standing. Legislative bodies can dip into the local treasury, can vote on issues, and move as one entity. Let’s say you give voters this power. So the Mormons who put up $25 million to pass Prop 8 sue and fail. Next you have the National Organization for Marriage. Next, that group in Arizona. Next, Bob from Orange County who is straight and feels he’s harmed. Next, the 3rd street baptist church in downtown San Diego. It goes on an on. Plus, what if some of us voters who don’t want the law challenged thinks the case shouldn’t be pursued? What about our rights?
Now I’m no Constitutional scholar, but it seems like if we make the people responsible for defending a law, then we’ll run into all sorts of problems like above, and probably more that is too long to list here. The trial was only going to happen once, the state was the proper authority to defend it, and they did and lost. If you don’t like giving the state that power, then pass a law to change it (cue predictable “but we already passed a law!”). Remember, you didn’t have standing to challenge it. So next time, pass a law saying you do
I was going to propose something similar to what RNAB proposed, State Officers and their powers and duties are controlled by statutes and the State Constitution. If you are seriously so worried about a spate of Governors/AGs nullifying popular referendums then just write it into the appropriate place that the AG legally has no option but to vigorously defend the referendum in court.
The AG would still have some discretion though, for example if the referendum was clearly an unconstitutional law and was immediately shut down by a District court he could use his expertise as the State’s top lawyer to issue a statement or official memo or something explaining that to defend the case or appeal the ruling would be a waste of State resources due to the impossibility of prevailing in court.
You could even have a safety mechanism in place, where citizens or various parties could sue the State AG if they felt he abused his discretion in declining to defend a referendum, and if a State judge agreed he’d appoint a special counsel to defend the law on the State’s behalf in that special scenario.
Or better yet, what I’d do, is abolish the referendum and Governor recall process. Both are terrible instruments of public policy and I look with disfavor upon any State government that has either instrument. In most cases they were a result of bad decisions made in a populist wave of State legislatures/governors in the early part of the 20th century and result in all kinds of terrible laws and actions.
Also, to the people saying, “if the private citizens could demonstrate harm, they’d have standing, but gay marriage harms no one” I do not believe (as a layman who read the ruling) that is true. I think the SCOTUS made clear that in its history it has never allowed private citizens to defend a State law that has been struck down by a Federal court when the State itself has declined to defend the law. The SCOTUS appears to say that it is the State government’s job to do that on behalf of the people, but a private citizens never has standing to fight to keep a State law constitutional.
Now, they often will have standing to sue in Federal court to get a state law struck down if they can demonstrate the law harms them. [Many cases of constitutional importance are like that.] But they don’t have standing basically ever (as I understand it), to defend State law on behalf of the State in Federal courts.
Not so far as I can see. Take my example – the voters pass a referendum amending the California Constitution to limit the terms of all elected state officials to no more than twelve consecutive years.
The governor, naturally displeased by this restriction, hires a bag lady to sue, and refuses to defend.
And since the term limits law voted in by Californians is such a shining example of the stupidity of which California voters are capable, I think I’ll forward your suggestion to Governor Brown right away.
IANAL, but if I had to guess, perhaps the other potential candidates for governor would have standing to defend the law, since their chances of being elected are harmed if the term limit law is overturned and the governor is allowed to run again.
At least, that’s who benefits from having the law remain in place. I don’t have the legal knowledge to know if that benefit would give them standing to defend it.
Prop 8 seems fairly unique in that no one benefits from it. It harms same-sex couples, and does nothing for anyone else – unless we count whatever emotional satisfaction they get from denying gays the right to marry.
Isn’t this what did happen in CA, though? The state government was of the opinion that Prop 8 was unconstitutional and could not be rationally defended, and thus they declined to appeal the District Court decision.
Right, but my proposal would oblige the AG to only do that if he could demonstrate in some official memo or statement that the law shouldn’t be defend because it was a futile effort. That is a high bar, and my proposal would allow citizens to bring suit in State court to contest the AG’s discretion in such a scenario, the AG would have to have a pretty strong argument to satisfy that bar and if he didn’t special counsel would be appointed to continue the case.
Under the current law, the AG has no active responsibility to defend any law in Federal court. Further, citizens do not appear to have any right to file suit to contest the AG’s actions. I was proposing that he be given such responsibility, with an “out” mechanism that would really be structured only to sweep away truly stupid referendums that would be “obviously” unconstitutional. Since Prop 8 was pretty heavily debated at several levels of court, I don’t know that it would meet any such “obviousness” standard.
I’m only proposing it as a way people who are so concerned about “executive nullification” could fix that concern, since the responsibilities and duties of State officers are controllable by statute. It looks like a law professor has proposed just defaulting to always appointing special counsel if the AG declines to defend the law. That would be much simpler, but would remove from the State the ability to avoid paying for litigation costs when a referendum is very obviously unconstitutional (imagine something zany like a referendum legalizing slavery or something.) Note I’m not one that has a problem with executive nullification, I am actually deeply opposed to referendums and things of its nature (including Governor recalls) and think they are anathema to properly functioning representative government. Referendums are only really appropriate to me for smaller scale issues (e.g. towns/cities, school district etc type decisions), or as a mechanism to get voter “approval” of something crafted by the legislature (like State Constitutional Amendments.)
Meanwhile, back in the real world, the bag lady loses and the term limits stay in place because the governor has to mount some kind of defense (since as we all know, it was the APPEAL of Prop 8 that was ruled as without standing), because she’s not a lawyer. Also, though I’m not sure about the exact law in this case, isn’t there a problem with collusion?
And in this case, unlike in gay marriage, I see potential legislators as the victims who have standing. Remember, with gay marriage, there are NO VICTIMS
But that doesn’t appear to be what the SCOTUS said, my understanding of the ruling on standing is they didn’t specify anything about private citizens having standing if the law creates “victims” or not. Instead it simply stated that private citizens can’t defend a State law in Federal court when the State declines to do so, period. They even mentioned that has never been permitted in any point in our precedential history. You keep repeating the point about gay marriage not creating victims, but there is no evidence that any State law can be defended in Federal court by private citizens, it doesn’t matter if they can show they are an aggrieved party or not.
Generally, I agree, but when there is an issue of this type of importance, and where there are reasonable arguments on both sides (so reasonable that it will be a 5-4 SCOTUS decision either way) then the state should defend its laws regardless of the political beliefs of the person in power.
I mean, most states have a seat belt law. Let’s say a Governor is elected with a Libertarian lean and instructs his police force not to pull anyone over or otherwise enforce the seat belt law because in his opinion it is an unconstitutional restraint on freedom. Sure he has discretion, but those decisions are for legislatures and courts, not him.
It’s not a matter of: Geez, we can’t defend EVERY stupid little law coming down the pike. This is clearly a political decision. I agree that case law supports your side, but I am just arguing what leaders should do.
