Thursday, June 27, 2013

After The Supreme Court Prop 8 Opinion Are California Like Voter Inititatives Less of A Club

The Prop 8 case was decided or mot decided on your point of view on the basis of standing which people often have different opinions of which can be seem in the SCOTUS opinion itself .

I have brought up as to the Prop 8 dispute an issues that has nothing to do with gay marriage but should be a concern. In fact it was a concern of some  anti pro gay marriage anti Prop 8 folks

. Howard Friedman brings up this at Analysis of Today's Same-Sex Marriage Decisions-- Installment 3: The Amazing Power of A Decision Based On Standing After talking about parts of the opinion and how the California Govt decided not to defend this law he notes in part :

 The case raises the broader question of when it is appropriate for state officials to refuse to defend the constitutionality of a state law, or a state constitutional provision. Their oath to uphold the Constitution of the United States presumably obligates them to refuse to defend unconstitutional provisions. However, in states like California with broad initiative provisions, this case suggests a route by which initiatives adopted by popular vote can be effectively eliminated by a legislature and executive who disagree with the initiative. An opponent of the initiative need merely file a federal lawsuit challenging its constitutionality under federal law, and existing state officials need merely to refuse to defend the initiative's legality. That spectre is reflected in the dissent's observation:

  In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around.

I have to say I think this is huge. In a State like California with its political dynamics the voter initiative has been a powerful and needed check. Now there is a way for the Government to actually defeat it despite perhaps having its position defeated at the polls.

This of course goes beyond California .

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