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By Tom Watts
Today, the Supreme Court dismissed the appeal on California’s Proposition 8 in Hollingsworth v. Perry, allowing the District Court’s decision overturning Prop 8 to stand. This decision returned California to the list of states permitting same-sex marriage. With this decision, accompanied by the defeat of DOMA in United States v. Windsor, today was a great day in the fight for gay rights.
But as the just euphoria over a major civil rights victory at a court that has been quite hostile to civil rights — let us not forget the demise of a significant portion of the Voting Rights Act in Shelby County v. Holder just yesterday — begins to settle, we should consider just how the Court came to these salutary outcomes. I suggest this because I believe that Perry was wrongly decided.
The majority held that the official proponents of Prop 8 did not have standing to defend Prop 8 in federal court. The particular problem was that “[T]he District Court had not ordered them to do or refrain from doing anything. . . . [P]etitioners had no ‘direct stake’ in the outcome of their appeal. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.”
This badly misunderstands the status of official proponents of a new California law, especially one enacted by proposition. For illustration, in the federal government, the “sponsor” of a bill is the member of Congress who introduced it. In California, the “sponsor” of a bill is the company or organization who encouraged the member to introduce the bill; the member is the “author.” Both are listed in all official analyses as the bill goes through committee and to the floor. Sponsors are in a significant part responsible for the bill’s final language and success: sponsors lobby and negotiate on behalf of bills, and only 40% of bills that pass lack a sponsor.
The involvement of initiative sponsors is considerably greater. As the dissent notes, initiative sponsors gather the signatures (which usually costs a lot of money), pay a filing fee, and draft the arguments in the official ballot pamphlet. Initiative sponsors also usually run the bulk of the favorable advertising, at considerable expense. The time and money involved seem to create a “direct stake” in the outcome.
The majority tries to wave this off by saying that their responsibilities ended when the initiative passed into law, but this ignores the realities of California state government. Sponsors do not walk away when a bill or proposition becomes law. If that law does not work as the sponsor intended, the sponsor engages with the government to change the implementation or create a new law. California government, with its system of sponsorship and propositions, deliberately blurs the line between officials and ordinary citizens, which surely is part of the reason that the California Supreme Court unambiguously held that the sponsors did have the authority that the majority today held that they lacked.
The dissent also points out that initiatives are often challenged in court, and by eliminating standing for the sponsors, the majority gives a de facto veto to the very officials that the initiative system allows citizens to bypass, presumably because the officials were unwilling to pass the laws themselves. If only government officials can defend the law, but the law is one that was passed by the citizens because the officials were unwilling to pass it themselves, then the officials can hardly be expected to engage in the zealous advocacy that standing principles are supposed to protect.
We may celebrate the outcome in Hollingsworth v. Perry, but I cannot celebrate the reasoning. This case was incorrectly decided.