Prop 8 Overturned on Standing

[MyRescueKittehRocks]

And I think that the Prop 8 ruling was correct, because the petitioners lacked standing.  The problem with the two rulings together was that if the Court is going to trample the rules on standing, wouldn't it be better to do so in order to protect the rights of people trying to pass initiatives instead of doing so to protect the rights of the legislature?

A dangerous loophole was discovered in this ruling.  State governments now have effective veto power over initiatives.  They can simply wait for a non-government party to challenge an initiative, and then choose not to defend the initiative, and boom! initiative can be struck down, and there's no ability for appeal.

That's where SCOTUS was fundamentally wrong. Since the state abandoned its constitutional duty to defend the law someone stepped in. Prop 8 like Prop 22 before it should stand especially in light of the DOMA ruling.  Dukes assessment is correct.

[Queen Mum Inks.LWC]

And I think that the Prop 8 ruling was correct, because the petitioners lacked standing.  The problem with the two rulings together was that if the Court is going to trample the rules on standing, wouldn't it be better to do so in order to protect the rights of people trying to pass initiatives instead of doing so to protect the rights of the legislature?

A dangerous loophole was discovered in this ruling.  State governments now have effective veto power over initiatives.  They can simply wait for a non-government party to challenge an initiative, and then choose not to defend the initiative, and boom! initiative can be struck down, and there's no ability for appeal.

No, that's only if there's no intervenor with individualized standing.  Rule 24 in the Federal Rules of Civil Procedure covers this.  And again, this is a rare case and sometimes standing rules are just a bummer.

I understand why it was ruled the way it was, and I understand Rule 24.  I'm simply saying that in the future, this could potentially lead to abuse by the states.

Three things:

Prop 8 is sui generis.  This is an incredibly rare situation.  It's not likely to happen with any regularity.

If a state wants to purposefully lose a litigation, they have better options.  What about just making a few mistakes like not raising major issues, etc? 

In any case, there's going to be a final judgment on the merits from a court with jurisdiction.  That's worth something. 

I could see other cases that would fall under the loophole: balanced budget amendments (although that'd be hard to challenge and get it to federal court) are one thing that come to mind.

[Queen Mum Inks.LWC]

And I think that the Prop 8 ruling was correct, because the petitioners lacked standing.  The problem with the two rulings together was that if the Court is going to trample the rules on standing, wouldn't it be better to do so in order to protect the rights of people trying to pass initiatives instead of doing so to protect the rights of the legislature?

A dangerous loophole was discovered in this ruling.  State governments now have effective veto power over initiatives.  They can simply wait for a non-government party to challenge an initiative, and then choose not to defend the initiative, and boom! initiative can be struck down, and there's no ability for appeal.

That's where SCOTUS was fundamentally wrong. Since the state abandoned its constitutional duty to defend the law someone stepped in. Prop 8 like Prop 22 before it should stand especially in light of the DOMA ruling.  Dukes assessment is correct.

Well I don't know that I'd say the state has a constitutional duty to defend the law.  Unless there's something specific in the California constitution that I don't know about.

[True Federalist (진정한 연방 주의자)]

And I think that the Prop 8 ruling was correct, because the petitioners lacked standing.  The problem with the two rulings together was that if the Court is going to trample the rules on standing, wouldn't it be better to do so in order to protect the rights of people trying to pass initiatives instead of doing so to protect the rights of the legislature?

A dangerous loophole was discovered in this ruling.  State governments now have effective veto power over initiatives.  They can simply wait for a non-government party to challenge an initiative, and then choose not to defend the initiative, and boom! initiative can be struck down, and there's no ability for appeal.

Which is why I expect that there will be several initiatives to provide a mechanism to allow for the initiative to be defended by someone other than the executive if it declines to do so.  Keep in mind that the reason for the Prop 8 ruling was not that someone other than the executive provided the defense, but that California written law provided no authority to the initiative sponsors to defend the law.

However, in the broader sense, in California there is already a means to deal with a governor who declines to defend an initiative that the people want defended, the recall.

[Queen Mum Inks.LWC]

And I think that the Prop 8 ruling was correct, because the petitioners lacked standing.  The problem with the two rulings together was that if the Court is going to trample the rules on standing, wouldn't it be better to do so in order to protect the rights of people trying to pass initiatives instead of doing so to protect the rights of the legislature?

A dangerous loophole was discovered in this ruling.  State governments now have effective veto power over initiatives.  They can simply wait for a non-government party to challenge an initiative, and then choose not to defend the initiative, and boom! initiative can be struck down, and there's no ability for appeal.

Which is why I expect that there will be several initiatives to provide a mechanism to allow for the initiative to be defended by someone other than the executive if it declines to do so.  Keep in mind that the reason for the Prop 8 ruling was not that someone other than the executive provided the defense, but that California written law provided no authority to the initiative sponsors to defend the law.

However, in the broader sense, in California there is already a means to deal with a governor who declines to defend an initiative that the people want defended, the recall.

But people shouldn't have to recall a Governor to get him to defend an initiative.  And a Governor shouldn't have to defend a law that he doesn't agree with.

[True Federalist (진정한 연방 주의자)]

And a Governor shouldn't have to defend a law that he doesn't agree with.

So legislatures should never be able to override a governor's veto?

[MyRescueKittehRocks]

And I think that the Prop 8 ruling was correct, because the petitioners lacked standing.  The problem with the two rulings together was that if the Court is going to trample the rules on standing, wouldn't it be better to do so in order to protect the rights of people trying to pass initiatives instead of doing so to protect the rights of the legislature?

A dangerous loophole was discovered in this ruling.  State governments now have effective veto power over initiatives.  They can simply wait for a non-government party to challenge an initiative, and then choose not to defend the initiative, and boom! initiative can be struck down, and there's no ability for appeal.

That's where SCOTUS was fundamentally wrong. Since the state abandoned its constitutional duty to defend the law someone stepped in. Prop 8 like Prop 22 before it should stand especially in light of the DOMA ruling.  Dukes assessment is correct.

Well I don't know that I'd say the state has a constitutional duty to defend the law.  Unless there's something specific in the California constitution that I don't know about.

Part of excecuting the obligations of office for the AG is defending a law being challenged in a district court. I see something like that as an inherent responsibility. Even on laws the executive of a state or country (Obama you don't get off scott free on your unjust attacks and not defending DOMA) don't like.

[politicsguru13]

Ok, what am I wondering is, for this case, who would qualify as having standing other than the State?

Has a precedent been set that could have significant ramifications for future state initiatives?

[TJ in Oregon]

Ok, what am I wondering is, for this case, who would qualify as having standing other than the State?

Has a precedent been set that could have significant ramifications for future state initiatives?

That is actually a good question flying around right now that no one seems to know the answer to. If the initiative being invalidated created some victim other than those who campaigned for it, then clearly they would have standing. But for anything victimless, perhaps no one does have standing. It created an odd loophole.

[politicsguru13]

I am glad that SSM is now legal in California, but if you forget about the specifics of this case, it's a pretty bad decision. It basically gives the State authorities a veto power over any popular initiative that would be challenged and struck down in lower courts. This defeats the whole purpose of having popular initiatives.

I'm thinking it might be a pretty sound decision. I'm not the biggest fan of popular initiatives but I can see both the good and the bad. I'm thinking that if the situation were completely reversed- with Prop 8 legalizing gay marriage and a group like Focus on the Family suing, with the State neglecting to defend the Proposition- that the Supreme Court would have found that a gay couple has standing. I think the reach of this decision is designed to be as limited as possible. It's essentially the Court's way of saying "Come back later".

[Lief 🗽]

I am glad that SSM is now legal in California, but if you forget about the specifics of this case, it's a pretty bad decision. It basically gives the State authorities a veto power over any popular initiative that would be challenged and struck down in lower courts. This defeats the whole purpose of having popular initiatives.

Good; popular initiatives are horrible.

[I spent the winter writing songs about getting better]

Pot legalization is pretty much the only good thing popular initiatives have ever given us.

[greenforest32]

I am glad that SSM is now legal in California, but if you forget about the specifics of this case, it's a pretty bad decision. It basically gives the State authorities a veto power over any popular initiative that would be challenged and struck down in lower courts. This defeats the whole purpose of having popular initiatives.

Good; popular initiatives are horrible.

Pot legalization is pretty much the only good thing popular initiatives have ever given us.

You guys are overlooking the leverage initiatives and referendums give to the population not only over the legislature, but also of policy. A national initiative system would surely give us stupid laws like term limits but it would cut through so much corruption. Repealing that ban on Medicare negotiating prescription drug prices? Repealing that ban on importing prescription drugs from other countries? Abolishing the electoral college? Raising the cap on the Social Security payroll tax? Taxing unearned income the same as earned income and cutting the most egregious tax loopholes? Neutral/independent redistricting? Those would pass with a supermajority of the vote.

We could use some more chaos instead of only having a consistently corrupt legislature deal with things. A system where candidates raise millions in bribes campaign contributions, sit in gerrymandered districts, have lobbyists "advise" and draft legislation before finally getting said legislation through the privileged filibustering upper chamber to send the "compromise" bill to the president.

We are not the deciders at this point.

[Queen Mum Inks.LWC]

And a Governor shouldn't have to defend a law that he doesn't agree with.

So legislatures should never be able to override a governor's veto?

Of course they should.  But he shouldn't have to defend it if he feels that it is unconstitutional.

[politicallefty]

I think the Supreme Court, in this case, has basically disregarded the initiative process. In fact, insofar as constitutional law is concerned, Prop 8 should easily be more than dead. With Justice Kennedy's dissent (along with Justice Sotomayor), I re0ally have to wonder how the case would have come down on the merits. It's really hard to make sense of the Court's division in this case considering how the Justices broke down. It seems very hard to reconcile it with current thoughts and views.

[Thomas D]

CNN reported that the stay has been lifted and Marriages can now resume.

[politicallefty]

CNN reported that the stay has been lifted and Marriages can now resume.

Indeed. In fact, both sets of plaintiffs have now been married (the lesbian couple in SF by AG Kamala Harris and the gay couple in LA by outgoing Mayor Antonio Villaraigosa).

As the Ninth Circuit stated:

You must be logged in to read this quote.

I hope this is the final stake into the heart of Prop 8.

[○∙◄☻¥tπ[╪AV┼cVê└]

CNN reported that the stay has been lifted and Marriages can now resume.

Indeed. In fact, both sets of plaintiffs have now been married (the lesbian couple in SF by AG Kamala Harris and the gay couple in LA by outgoing Mayor Antonio Villaraigosa).

As the Ninth Circuit stated:

You must be logged in to read this quote.

I hope this is the final stake into the heart of Prop 8.

It still might be nice to formally repeal it. Maybe on the 2016 ballot.

[Lincoln Republican]

Is Roberts trying to be another Earl Warren?

[President Tyrion]

I am glad that SSM is now legal in California, but if you forget about the specifics of this case, it's a pretty bad decision. It basically gives the State authorities a veto power over any popular initiative that would be challenged and struck down in lower courts. This defeats the whole purpose of having popular initiatives.

Good; popular initiatives are horrible.

Pot legalization is pretty much the only good thing popular initiatives have ever given us.

You guys are overlooking the leverage initiatives and referendums give to the population not only over the legislature, but also of policy. A national initiative system would surely give us stupid laws like term limits but it would cut through so much corruption. Repealing that ban on Medicare negotiating prescription drug prices? Repealing that ban on importing prescription drugs from other countries? Abolishing the electoral college? Raising the cap on the Social Security payroll tax? Taxing unearned income the same as earned income and cutting the most egregious tax loopholes? Neutral/independent redistricting? Those would pass with a supermajority of the vote.

We could use some more chaos instead of only having a consistently corrupt legislature deal with things. A system where candidates raise millions in bribes campaign contributions, sit in gerrymandered districts, have lobbyists "advise" and draft legislation before finally getting said legislation through the privileged filibustering upper chamber to send the "compromise" bill to the president.

We are not the deciders at this point.

In CA specifically, a 2/3 majority in the legislature is required to make any change to the tax code, whereas a simple majority in a referendum would suffice. Considering CA's revenue stream is in shambles, and the California Republicans continue to be dogmatic in the State Senate, there's really no opportunity for the legislature to alter the tax code or certain budgetary line items, although some reform is sorely needed. That's where the CA specific importance of referendums comes in, although it's definitely just an artificial creation borne of partisanship.

[President Tyrion]

I think the Supreme Court, in this case, has basically disregarded the initiative process. In fact, insofar as constitutional law is concerned, Prop 8 should easily be more than dead. With Justice Kennedy's dissent (along with Justice Sotomayor), I re0ally have to wonder how the case would have come down on the merits. It's really hard to make sense of the Court's division in this case considering how the Justices broke down. It seems very hard to reconcile it with current thoughts and views.

I don't think the ruling is particularly surprising. Scalia and Roberts are more likely to strictly interpret the rules; in this case, special interest groups have no right to defend a state law in court. That assertion opens a whole can of worms, as people have already mentioned upthread, but the fact of the matter is that it aligns with their beliefs. Truly, only Clarence Thomas had a baffling stance. With Anthony Kennedy's vehement defense of SSM, the law on its merits would have likely been struck down as unconstitutional. Thomas' stance is at odds with both his conservatism and the fact that granting standing would probably allow the law to be unconditionally struck down without deference to the lower court.

[politicallefty]

I don't think the ruling is particularly surprising. Scalia and Roberts are more likely to strictly interpret the rules; in this case, special interest groups have no right to defend a state law in court. That assertion opens a whole can of worms, as people have already mentioned upthread, but the fact of the matter is that it aligns with their beliefs. Truly, only Clarence Thomas had a baffling stance. With Anthony Kennedy's vehement defense of SSM, the law on its merits would have likely been struck down as unconstitutional. Thomas' stance is at odds with both his conservatism and the fact that granting standing would probably allow the law to be unconditionally struck down without deference to the lower court.

I don't think it's a surprising ruling either. And, on second thought, this ruling probably doesn't have a particularly deleterious effect on the initiative process. All the Court said in this was that those without injury cannot have standing. Striking down Prop 8 and affirming gay marriage in California does not result in an injury to those that oppose gay marriage. This is indeed a rare case and quite limited in its scope. In fact, it could be a significant pro-gay rights ruling (even beyond California) in that the Court has essentially said that marriage equality does not harm anyone, let alone society. Otherwise, the proponents of Prop 8 would have had standing.

As for the decision itself, it's not Scalia that surprises me at all. His vote here was strictly procedural on the standing issue. He will never sign on to a ruling that grants equal protection on account of sexual orientation. If anything, I can't quite reconcile this ruling with Justice Kennedy supporting gay marriage in all 50 states. He and the liberals on the Court could have easily made that happen. Part of me thinks that that was intentional to kick the can down the road for a couple years. I think there is a majority on the Court to strike down all bans on gay marriage, but that they want to wait a couple years (perhaps 2016 or 2017).

Lastly, I think Roberts is quite noteworthy in both this case and the DOMA case. His views on gay marriage have yet to be determined, unlike most on the Court. He only expressed his views on the standing issues on both (denying in both instances). Roberts chose not sign on to Scalia's particularly anti-gay dissent. I think it's notable in that Roberts provided legal support in Romer v. Evans. I'm not willing to go out and say Roberts will vote for a 50-state ruling on the merits, but it could be possible.

[RandomWonder]

I'm a Republican that thinks gay marriage should be legalized, so this is good news.