Why the Prop. 8 Decision Should Make Liberals Uneasy

It's been pointed out many times that both the liberals and the conservatives on the Supreme Court often seem to reason backwards, starting with the outcome they'd prefer to see, then coming up with a rationale to justify that outcome. For instance, as I noted yesterday, Antonin Scalia was happy to overturn a law passed and overwhelmingly reauthorized by Congress (the Voting Rights Act) because he didn't like the law, then in a decision issued the very next day, thundered against the Court's majority for having the temerity to overturn a law passed by Congress (the Defense of Marriage Act), because that happened to be a law he did like. Fortunately, the sweeping majesty of our jurisprudential history provides an endless supply of rationales a justice can use to support whatever decision he or she would like to make.

But sometimes, a good outcome can produce a dangerous precedent. And that may be just what happened in the Proposition 8 case the Court decided yesterday.

In the case, the majority did what most observers predicted: they found a way to strike down Prop. 8 without mandating that gay people be allowed to marry in every state. They did it by declaring that the plaintiffs in the case didn't have "standing," that is, they didn't have the right to be a party to the case because they hadn't suffered any particular harm. This came about because the California state government had refused to defend Prop. 8 in court, so in the state's absence, gay marriage opponents stepped in to defend the proposition. But if those gay marriage opponents have no standing, the lower court's ruling against the proposition stands, and Prop. 8 was invalidated. That let the Supreme Court strike it down without addressing the law's merits.

Now let's think about how this could play out in a future case. Let's say California voters pass an initiative restricting certain kinds of industrial pollution. The industries responsible for that pollution sue to have the initiative overturned, claiming it's unconstitutional. The Republican governor decides he's on the side of the industries, so he refuses to defend the initiative in court. With no one to defend it, a trial court issues a summary judgment and the initiative is invalidated. Presto—the governor now has veto power over any initiative he feels like killing.

One might argue that in practice, advocates for the initiative would be able to find someone with standing to defend the law. In the Prop. 8 case they couldn't because of the unique nature of the issue; it's impossible to find anyone who has suffered a concrete harm from gay people being allowed to marry, but it wouldn't be hard to find someone who has been harmed by the pollution. But the question isn't so much whether anyone has been harmed, it's who has been harmed, and whether they have the substantial resources needed to mount a defense of an initiative in the courts. The Prop. 8 decision effectively shifts the burden of defending initiatives passed by the voters from the state to private citizens. The state has lawyers, they have a large budget, and they're experienced at defending laws in court. But if the state doesn't have an obligation to defend its laws, you move the game to what could be a tilted playing field.

As I've argued before, the California initiative process is a mess, perverting its democratic intents and placing impossible burdens of lawmaking on voters who aren't prepared to understand the absurd number of initiatives they're asked to vote on. But as long as it exists, the decisions voters make in initiatives shouldn't be subject to a veto by whoever happens to be governor at a particular moment. And if you privatize the business of defending initiatives in court, you'll probably give an advantage to conservatives. The kinds of initiatives liberals favor are usually going to be aimed against well-funded private interests, like big employers affected by an initiative on labor rules, or utilities affected by an initiative on consumer rights, or energy companies affected by an environmental initiative. Those folks have plenty of resources to wage court battles, but it's going to be much harder for the other side to match them. Not impossible—there are labor unions and environmental groups with big budgets—but definitely harder.

I'm not sure if this potential future is what produced the unusual alliances in the Prop. 8 decision. This wasn't liberals on one side and conservatives on the other—the majority consisted of two conservatives (Roberts and Scalia) and three liberals (Ginsberg, Breyer, and Kagan). And yes, it's probably true that in almost every future case, there will be someone who suffered demonstrable harm and thus has standing to be a party to the case. But at a minimum, the state ought to be obligated to defend its laws in some way. If they aren't going to provide the lawyers and do the work to defend a law they disagree with, then maybe they should be required to pay for it.

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