Guest post: California Supreme Court Decision Makes the Initiative Process More Dangerous For Minorities, But The Prop 8 Case Is Back On Track
November 18, 2011
Please welcome Shannon Minter and Christopher Stoll back to Prop8TrialTracker.com for a guest post breaking down yesterday’s California Supreme Court decision. Shannon Minter is the Legal Director for the National Center for Lesbian Rights; and Christopher Stoll is a Senior Staff Attorney for the National Center for Lesbian Rights. -Adam
By Shannon Minter and Christopher Stoll
Yesterday the California Supreme Court issued its long-awaited decision in Perry v. Brown, the federal court challenge to Proposition 8, the 2008 ballot measure that stripped the right to marry from same-sex couples in California. The court ruled that California law gives the official sponsors of Prop 8 the authority to “represent the interests of the state” and to appeal a federal court decision striking it down—even though the state’s official representatives have decided not to appeal. The decision is unprecedented and will undoubtedly have damaging repercussions for the state for years to come. But as disappointing as the ruling was, it clears the way for the federal courts to move forward and decide the fate of Prop 8.
What the California Supreme Court Held
In August 2010, Chief U.S. District Judge Vaughn R. Walker ruled that Prop 8 is unconstitutional. Although the California Attorney General and Governor declined to appeal, the official sponsors of Prop 8 did so immediately. In a prior case addressing this situation, the U.S. Supreme Court had said that initiative sponsors cannot appeal unless state law specifically authorizes them to do so. To resolve that question, the Ninth Circuit asked the California Supreme Court to determine whether California law gives initiative proponents the power to represent the interests of the state and bring an appeal even when the official state representatives have declined to do so.
Yesterday, the California Supreme Court said the answer is yes. The court held that when state officials decide not to defend a ballot measure’s constitutionality, the individuals who put the initiative on the ballot have a right “to assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure.” The Court derived this newly identified right from “the nature and purpose of the initiative process” and “the unique role of initiative proponents in the constitutional initiative process.”
Why the California Supreme Court’s Decision Was Wrong
The Court’s decision gives initiative proponents sweeping power and disregards the limitations imposed on the initiative process by the California Constitution. The California Constitution gives voters legislative power—specifically, the power to propose and vote on initiatives. But nothing in our Constitution or statutes allows voters to wield the power of the executive branch, which is responsible for enforcing and defending state law. Rather than respecting the constitutional limits on the initiative process, the Court’s decision wrongly transforms the initiative process into a free-floating super power that disregards the traditional checks and balances that are essential to any healthy democracy. This is dangerous for all Californians, but it is particularly damaging for groups that are vulnerable to bias and discrimination.
Before yesterday’s decision, executive branch officials had the final authority to decide whether to appeal a federal court decision invalidating a state law. For example, in Reitman v. Mulkey. 387 U.S. 369 (1967), the California Attorney General refused to defend a state constitutional amendment—enacted by initiative—that repealed existing protections against race discrimination in housing. Recognizing that the measure was indefensible, the California Attorney General submitted an amicus brief to the United States Supreme Court arguing that the amendment violated the Fourteenth Amendment guarantee of equal protection because it amounted to an official endorsement of discrimination based on race. Similarly, in 1999, Governor Gray Davis dismissed the state’s appeal of a Los Angeles federal district court decision striking down most of Proposition 187, an initiative that excluded immigrants from a wide range of state benefits and protections. Davis decided instead to settle the case through mediation. While rare, such decisions are well within the broad discretion given to the executive branch under our state Constitution and serve an important function in safeguarding minority rights.
After yesterday’s ruling by the California Supreme Court, the state’s elected officials no longer have the power to make those important decisions to protect minorities improperly targeted by the initiative process. Instead, that power now resides with the handful of private individuals who typically sponsor an initiative for the ballot—people who are unelected and unaccountable to voters, and who have no obligation to take the interests of the state as a whole or the protection of the state’s minorities into account.
What This Means for The Perry Case
The case will now head back to the Ninth Circuit, which may ask the parties to submit additional briefs discussing how they think yesterday’s decision affects the case. After that, the Ninth Circuit might schedule additional oral arguments, or it might go ahead and issue its opinion. The court will likely want to get a decision out fairly quickly, since the appeal has now been pending for over a year.
The Ninth Circuit panel will have to decide two issues: whether the Prop 8 Proponents have standing to prosecute the appeal in light of the California Supreme Court’s decision, and if so, whether to uphold Chief Judge Walker’s August 2010 decision. The Proponents’ standing to bring an appeal in federal court ultimately is an issue of federal law, and the Ninth Circuit could still decide that they don’t have standing despite yesterday’s decision. But since the California courts have now issued a clear statement that state law authorizes initiative proponents to represent the state’s interests and bring an appeal, it’s likely that the Ninth Circuit will conclude that this state-law right is sufficient to allow Prop 8’s supporters to appeal.
If that happens, the Ninth Circuit will address the heart of the case: whether Prop 8 is unconstitutional. There are good reasons to be optimistic that the Ninth Circuit panel will uphold Chief Judge Walker’s meticulous August 2010 opinion. As that landmark decision showed in vivid detail, Prop 8 is blatantly unconstitutional for a host of reasons.
Prop 8 is unique and unprecedented. No other ballot initiative has stripped away an existing fundamental right from a targeted group and deliberately inscribed inequality into the California Constitution, and it was passed through a campaign that appealed to fear, prejudice and stereotypes. Prop 8 relegates same-sex couples to the second-class status of domestic partners—a category that serves no purpose other than to mark them as unequal and deny them the universally understood and celebrated status of married spouses. As the U.S. Supreme Court’s 1996 decision in Romer v. Evans held, laws like Prop 8 that serve no purpose other than to mark lesbian and gay people as unequal violate the Constitution’s Equal Protection Clause in the most literal sense.
After the Ninth Circuit panel issues its decision, the losing party will have to decide whether to immediately ask the Supreme Court to review the case, or whether to first ask a larger panel of Ninth Circuit judges to review the case. It’s too early to tell how likely it is that the Supreme Court will take the case—that might depend on exactly what the Ninth Circuit says in its decision. If the case does end up in the Supreme Court, it’s unlikely that the Court would hear the case any earlier than the fall of 2012, and probably would not issue any decision until 2013.