Who knew that the one issue on which I ostensibly defended the supporters of Proposition 8 would make a return performance?
Two years ago, I wrote a column offering my concern for those who sought standing on behalf of supporters of Proposition 8 in federal court.
Ted Olson, representing the plaintiffs argued before the 9th Circuit Court of Appeals that only the governor (Jerry Brown) or attorney general (Kamala Harris) had standing to defend state laws in court. The issue of who had standing was forced because those constitutional officeholders reached the conclusion that Proposition 8 was unconstitutional.
It turns out the argument Olson put forth before the 9th Circuit was what the Supreme Court used to effectively strike down Proposition 8 -- those who actually brought the case before the court did not possess the proper standing to do so.
The court's ruling became a convenient way to make a decision without rendering one. Gay and lesbian couples now enjoy the benefits of marriage equality, but it potentially comes at a price for all Californians.
This is not to overshadow the long-overdue process to place California into the 21st century on marriage equality, but the ultimate route taken to achieve this victory could set the state back in other areas.
For years, I held that Proposition 8 violated the 14th Amendment; what was decided, however, grants additional powers to the governor and attorney general not prescribed in the California Constitution.
If the governor and attorney general can arbitrarily decide what they will and will not defend, what does that do to direct democracy, otherwise known as the initiative process?
The question is somewhat counterintuitive because it suggests something that discriminated against a portion of Californians deserved to be treated fairly.
Our system for governing is not designed to combat injustice with unfairness. It leads to the Gandhian proverb: "An eye for an eye makes the world blind." Is this not what occurred the moment the governor and attorney general preemptively decided that Proposition 8 was unconstitutional?
Which is worse, to grant standing to a group not directly affected beyond their vote or to disallow their case because the governor and attorney general, who do possess standing, had no intention to defend it?
There is nothing under California law that provided Proposition 8 proponents with the right to appellate review. Initiative proposers can reserve the right to defend laws enacted through direct democracy by including that right in the ballot proposal.
Proposition 8 proponents failed to include this right. But this oversight does not diminish the overarching issue.
What was ultimately decided in the Proposition 8 case could create additional dysfunction to a system (the initiative process) that has already demonstrated to possess more than its fair share?
Ruling that Proposition 8 proponents did not have standing to appeal was tantamount to an executive pocket veto. It grants additional power to the governor and attorney general not covered in the state constitution by rendering the power of voters in the initiative process essentially illusory.
How one feels about the issue in question is secondary. How can it be good for California going forward for the governor and attorney general to nullify the will of the people? Were they not elected to represent the "people" of California?
The failure to defend Proposition 8 is a state constitutional loophole at best, or enhanced power not democratically granted at worst.
Moreover, the cyclical nature of politics almost guarantees this issue will rear its head again -- maybe not in an identical manner, but it will return.
Could those who support the way Proposition 8 was decided, support the process if it were an issue they supported, but when it came time to represent the will of the people the governor and attorney general at the time felt otherwise?
Contact Byron Williams at 510-208-6417 or firstname.lastname@example.org.