07/02/2013 09:43 am ET Updated Sep 01, 2013

Prop 8 Decision Allows Elected Officials To Veto Laws Passed by the People

Supporters of democracy and the idea of lawmaking by the people -- wherever they stand on the issue of same-sex marriage -- should be troubled by the Supreme Court's decision Wednesday on California's Proposition 8.

At first glance, it might seem that advocates of same-sex marriage should celebrate the Court's decision, and in terms of its immediate effect -- legalizing same-sex marriage in California -- they should. But those who care about the democratic process, which includes many same-sex marriage supporters, should be concerned about the ruling's long-run implications. And those who seek to gain approval for laws that are not favored by elected politicians -- from marijuana legalization to campaign finance reform and nonpartisan redistricting to tax cuts and spending limits -- should be worried that the public's power to make laws against the wishes of their representatives has been cut back in a big way, and government officials have been given the power to veto laws approved by the voters.

To understand why this is so, a few details about the twisting legal path of Proposition 8 need to be appreciated. Proposition 8 was approved by a majority of California voters in 2008, at which point it became part of the California constitution. The law was challenged and ruled unconstitutional by a District Court judge in 2010. At that point, the ruling should have been appealed by the state's attorney general or governor, who are responsible for defend the laws of the state in court. However, the politicians holding those offices disagreed with the voters about Proposition 8, and refused to appeal. With the duly constituted officials unwilling to let the law have its day in court, the initiative's proponents themselves appealed to the Ninth Circuit Court and eventually the case ended up before the U.S. Supreme Court. Rather than deciding whether Proposition 8 was constitutional or not, in Hollingsworth v. Perry the Supreme Court held that the initiative's proponents were not authorized to appeal in the first place and therefore the Court could not consider the merits of the issue. This left the District Court ruling in place, striking down Proposition 8.

While this deft legal reasoning allowed the Supreme Court to avoid a contentious public issue, in the process it robbed the public of almost any means of having its day in court on a popularly approved measure. By allowing elected officials to shut down a measure by refusing to appeal it, the ruling handed elected officials an entirely new tool to override the will of the people, and made it even harder for citizens to make government responsive to the public will.

The initiative process was established more than 100 years ago to give the people a way to overrule their elected representatives when those representatives failed to heed the wishes of the public, because they allowed their personal preferences and prejudices to drive their decisions or because they were unduly influenced by special interests. The initiative process is now available in 24 of 50 states and more than 80 percent of cities, and has become a time-tested and central part of American democracy at the state and local level. The possibility of a government that serves the interests of incumbent politicians and special interests rather than the public remains as real a danger now as it was a century ago, and the initiative provides an important alternative to the crude and often ineffective option of removing an unresponsive officials at the polls.

The Court's decision cuts to the core of the initiative process by allowing government officials -- precisely those that the initiative is designed to counteract -- to veto measures they dislike. The voters already have only a few crude tools to exert influence on elected officials; the Court has made those tools even weaker, and tilted an already unfair playing field further in favor of the government.

The California Supreme Court recognized this danger two years when asked by the Ninth Circuit Court to decide if Proposition 8 sponsors are authorized to defend it if elected officials fail to do so. The California Supreme Court, which had previously declared a constitutional right to same-sex marriage and is not sympathetic to Proposition 8, nevertheless held unanimously that the sponsors did have the right to defend the measure in court. The California justices correctly recognized that not allowing an initiative to be defended will gut the process, and empower those officials that it is designed to control.

Where things go from here is not clear. Initiative states might adopt laws that expressly empower initiative proponents to defend their measures. The California Supreme Court has already found that under state law initiative proponents do have standing, but the U.S. Supreme Court refused to accept this as providing standing in federal courts. Unfortunately, the majority opinion offered no suggestions on how the people might defend a law they passed when their elected representatives fail to defend it.

In the ongoing battle over same-sex marriage it is easy to focus on the immediate outcome of the Proposition 8 decision. But the long-run impact of the decision may be far important and should be discouraging to anyone across the political spectrum who believes that the people should have the right to pass laws over the objections of their elected representatives.