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U.S. Supreme Court should side with Prop. 8 backers on one key issue

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From left, lawyer Theodore Olson stands with his clients, plaintiffs Sandra Stier and Kristin Perry. The high court’s review could help legalize gay marriage. - REUTERS FILE PHOTO
  • Reuters File Photo
  • From left, lawyer Theodore Olson stands with his clients, plaintiffs Sandra Stier and Kristin Perry. The high court’s review could help legalize gay marriage.

At Tuesday’s U.S. Supreme Court hearing regarding California’s ban on same-sex marriage, the very first question, from Justice Ruth Bader Ginsburg to Charles Cooper, was, “Have we ever granted standing to proponents of ballot initiatives?”

Cooper, the attorney representing the Proposition 8 backers, admitted that the answer was no. But if the justices do not grant standing to proponents of ballot initiatives, there will be huge ramifications for the initiative process in California.

In the Prop. 8 case of Hollingsworth v. Perry, two same-sex couples led by Kristin Perry filed a lawsuit in federal court alleging that Prop. 8 violated the U.S. Constitution. In response, then-Attorney General Jerry Brown and Gov. Arnold Schwarzenegger rightfully answered, “Yeah, it’s unconstitutional.” In light of that public stance, the official proponents of Prop. 8, led by Dennis Hollingsworth, intervened to help defend the law.

After it was declared unconstitutional, Brown declined to appeal the decision — seeing as how he agreed. So Hollingsworth and friends appealed to the 9th U.S. Circuit Court of Appeals, which affirmed that Prop. 8 is unconstitutional. Then Hollingsworth appealed to the U.S. Supreme Court.

At Tuesday’s hearing, Theodore Olson argued on behalf of Perry that Hollingsworth had no business appealing the original decision to the 9th Circuit or the U.S. Supreme Court because he’s not a public official.

Justice Anthony Kennedy sniffed out the problem with such reasoning right away, noting that Olson’s position would allow governors and other constitutional officers in different states to “thwart the initiative process” by refusing to defend certain laws or providing a half-hearted defense.  And, of course, he’s right. “The whole point of the initiative process was to allow the people to circumvent public officials about whom they were suspicious,” Justice Samuel Alito later observed.

Eventually, Justice Sonia Sotomayor asked, “The assumption is that there are not executive officials who want to defend the law. They don’t like it. No one’s going to do that. So how do you get the law defended in that situation?” Olson absurdly suggested that the very officials who won’t defend the law appoint someone who will.

The court should rule that yes, proponents of official ballot initiatives — even odious ones like Prop. 8 — can defend a law where state officials will not. Properly constrained by state and federal constitutions, as Prop. 8 was in this case, the initiative process is a useful and important tool. Even while a majority of Californians would vote differently on Prop. 8 if it were on the ballot today, a recent poll by the Public Policy Institute of California showed that 72 percent of voters like the initiative process.

Just because voters sometimes make the wrong decision doesn’t mean we should hand veto power to elected officials. What if the law at issue wasn’t Prop. 8 but was something appropriate that public officials didn’t like, like campaign restrictions, marijuana liberalization or death-penalty reform?

The other upside to a ruling that says Hollingsworth is allowed to participate in this case? The justices would have to stand up and rule on the real issue of the right of same-sex couples to marry. That’s the “standing” in which I’m interested.

Melissa Griffin’s column runs each Thursday and Sunday. She also appears Mondays in “Mornings with Melissa” at  6:45 a.m. on KPIX (Ch. 5). Email her at mgriffin@sfexaminer.com.