California's ballot initiative process is vital to Californians and helps ensure that the will of the people is expressed, even when California politicians are uncooperative. Over the years, ballot initiatives have been proposed and passed that have advanced both liberal and conservative causes. In each of these cases, the initiative process was the only way to advance these issues as the legislature would not, or could not, pass effective legislation.
While the recent Supreme Court case on Proposition 8 may have advanced gay marriage, its unintended consequence is to put into question the sustainability and power of future ballot initiatives. Justice Scalia ruled, in essence, that the defenders of the Prop 8 initiative did not have standing to sue because only the State of California had standing to defend Prop 8 from attacks. While Gov. Brown and Kamala Harris, the State A.G., put up a begrudging defense of Prop 8 at the trial level, they opted not to appeal the trial court decision finding Prop 8 unconstitutional. Defenders of Prop 8 then stepped in and decided to appeal. The California Supreme Court held that clearly, the Prop 8 defenders had standing and could appeal the decision and were essentially representing the interests of the State.
Unfortunately, Justice Scalia's holding now weakens almost any ballot initiative--especially those that the Governor and Attorney General personally dislike. Consider the following hypothetical. A homeowner sues alleging that Prop 13 violates their equal protection because their neighbor who bought their home 50 years ago pays much less than they do for their new home, despite the fact the homes are identical and have the same value. Although merit less, the Governor and state AG could opt to not defend the suit. All of a sudden, an injunction is issued finding Prop 13 to be unconstitutional. The State decides it won't pursue an appeal and the defenders of Prop 13 have no standing in federal court to pursue an appeal either.
In a single opinion, Justice Scalia was able to do something many California politicians have been trying to do for year--weaken the initiative process.
