Most people are focused on the immediate impact of the Hollingsworth v. Perry decision, which will allow same-sex marriage to resume in California, but the legal justification for this decision could end up have the more important long term impact on the process of creating laws. It may weaken the power of direct democracy tools, like ballot initiatives.

While this decision is a victory for marriage equality in California, it is a victory on pure technical grounds not based on constitutional principles about marriage which would be applied nationally. Same-sex marriage “won” in California but only because the Court determined the opponents lacked standing.

The elected officials of the state refused to defend this law in court so the people who created it stepped in. The petitioners in this case was basically the members of the campaign which put Proposition 8 on the ballot in California in 2008.

The Supreme Court majority decided even though these people created the law they don’t have the right to defend it in court. There were none personally injured and can’t assert the State’s interest on the State’s behalf.

Petitioners argue that the California Constitution and its election laws give them a “‘unique,’ ‘special,’ and ‘distinct’ role in the initiative process—one ‘involving both authority and responsibilities that differ from other supporters of the measure.’” Reply Brief 5 (quoting 52 Cal. 4th, at 1126, 1142, 1160, 265 P. 3d, at 1006, 1017–1018, 1030). True enough—but only when it comes to the process of enacting the law. Upon submitting the proposed initiative to the attorney general, petitioners became the official “proponents” of Proposition 8. Cal. Elec. Code Ann. §342 (West 2003). As such, they were responsible for collecting the signatures required to qualify the measure for the ballot. §§9607–9609. After those signatures were collected, the proponents alone had the right to file the measure with election officials to put it on the ballot.§9032. Petitioners also possessed control over the arguments in favor of the initiative that would appear in California’s ballot pamphlets. §§9064, 9065, 9067, 9069.

But once Proposition 8 was approved by the voters, the measure became “a duly enacted constitutional amendment or statute.” 52 Cal. 4th, at 1147, 265 P. 3d, at 1021. Petitioners have no role—special or otherwise—in the enforcement of Proposition 8. See id., at 1159, 265 P. 3d, at 1029 (petitioners do not “possess any official authority . . . to directly enforce the initiative measure in question”). They therefore have no “personal stake” in defending its enforcement that is distinguishable from the general interest of every citizen of California.

Basically once the initiative becomes law, its proponents lose any legal status related to it. Long term this could hamper the ability of citizens to use the ballot initiative process to circumvent elected officials who were refused to adopt new policies.

This is unfortunate decision given that the main justification for creating the initiative process was to give citizens a way to enact laws that their current elected officials opposes. After all if the elected officials supported the change they would likely have already approved them using the normal legislative process.

Now citizens have lost a potential tool to try to deal with the serious problem of officials simply refusing implement the new laws approved by a majority of the electorate. A law not enforced is worthless.

We will need to wait to see how big the effect will be long term. It is possible that the uniqueness of this case may mean the actual impact on the initiative process is small. Normally it should be possible to find someone injured by the initiative not being implemented who would have standing in the court. Proposition 8 was a rare law that simply hurt one group of people while provide no new tangible benefits to anyone else.

It would have been better if all prohibitions against same-sex marriage had been declared unconstitutional for being a clear violation of the equal protection instead of Prop 8 simply being eliminated in California for this technical reason regarding the initiative process.

Photo by catheadsix released under Creative Commons License