When the U.S. Supreme Court announced the pair of holdings in Perry and Windsor, it left us, and many others, a bit concerned. Though the decisions in the cases had positive outcomes for marital equality advocates, the means employed to get there may have created a sort of unofficial "pocket" veto for the governor's office, which simply refused to enforce legislation that was approved by a popular majority. Ironically, such legislation is usually passed in response to inaction from, or disagreement with, the state government that refuses to enforce it.
San Francisco Mayor Gavin Newsom told The Wall Street Journal in an interview shortly after the decision was handed down, "You'd be hard pressed to find someone more enthusiastic about the outcome of the Supreme Court decision, but I do think the decision raises legitimate questions that are very problematic in the future."
He is one among many, including Supreme Court Justice Anthony Kennedy, who have questioned the vitality of the initiative process post-Perry. But on Saturday, at the ABA Annual Meeting in San Francisco, there was one very simple suggestion that may provide the answer to the Supreme Court's refusal of standing to private party proponents of initiatives:
Authorize standing in the initiative.
The suggestion came from Professor Vikram Amar, who also expressed concern over the precedent set by Perry. The idea is that if proponents of initiatives aren't by their nature "representatives" of the people for purposes of defending that legislation post-enactment, then appoint them as such in the initiative itself.
Professor Pamela Karlan, also on the SCOTUS term recap panel, pointed out that another initiative on the same 2008 ballot as Proposition 8 (the ban on gay marriage at issue in Perry) had such a provision.
If the people can push initiatives (theoretically, though few private citizens would have the resources to wage a statewide campaign in favor of a proposition), and they can vote to enact the legislation, they should be able to appoint representatives to fight on behalf of that legislation. Then if the governor, right or wrong, refuses to enforce that legislation, there is someone with standing to fight on the measure's behalf.
- Defend all of California's initiatives (Los Angeles Times)
- SCOTUS Marriage Rulings: DOMA Is Dead, Prop. 8 Down on Standing (FindLaw's U.S. Supreme Court Blog)
- 9th Circuit, Cal. Supreme Court Reversed: No Prop. 8 Standing (FindLaw's U.S. Ninth Circuit Blog)