Skip to main content









Donation Heart Ribbon
Visit the Midday Edition homepage

Will Prop 8 Decision Impact Initiative Process In California?

June 27, 2013 1:14 p.m.


Dan Eaton, Attorney, Seltzer Caplan McMahon Vitek

Thad Kousser, Political Science Professor, UC San Diego

Related Story: Will Prop 8 Decision Impact Initiative Process In California?


This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

CAVANAUGH: The U.S. Supreme Court decision on California's Proposition 8 will by default make same-sex marriage legal again in California. But it was the way the Court decided the case that has implications beyond the issue of gay marriage. Some activists are looking at the issue of legal standing as something that has the potential to undermine voter-approved initiatives in California. If the state's top legal officials choose not to defend state laws, who can? Joining me to join this legal and big issue, Thad Kousser, Political Science Professor.

KOUSSER: Good to see you.

CAVANAUGH: Dan Eaton, San Diego attorney. Welcome back.

EATON: Nice to see you, Maureen.

CAVANAUGH: We all got some quick instruction in the law yesterday on the issue of legal standing. Remind us what is it means and how it affected Prop 8.

EATON: Proposition 8 was defended on appeal by the proponents of Proposition 8. The district court ruling striking it down did not order the proponents of Proposition 8 to do anything. What it ordered was the attorney general and the governor to do something, namely not to enforce Proposition 8, and that was the problem for the purposes of standing or the right to appeal the adverse ruling of the district court of the the proponents had been ordered to do nothing, and yet they were appealing to the 9th circuit and the U.S. Supreme Court the ruling striking down Proposition 8. And that under the federal constitution said chief justice Roberts in the 5-4 decision, they simply could not do. They did not have standing. Chief justice Roberts said we have never upheld the right of a private party to defend the constitutionality of a state statute, we're not going to start doing it now.

CAVANAUGH: Now, what criteria do you have to meet to determine whether someone has legal standing in a case?

EATON: You have to show concrete and particularized injury. That is really what is the issue here. And remember, this is an issue on appeal. The proponents of Proposition 8 were allowed to intervene in the trial court. The district court. Because the state officials are half hearted at best in defending what was brought to strike it down. But on appeal, if the district court rules against you, in order to have the right to appeal, you have to show that you have some sort of concrete or injury result of the ruling. And the proponents of Proposition 8 said the U.S. Supreme Court by a 5-4 decision couldn't do that.

CAVANAUGH: What would be an example of a concretized injury that would allow them to move forward?

EATON: For example, let's say hypothetically that the people who were seeking to strike down Proposition 8 had lost. They asserted in the trial court that they were being denied the right to marry. So the fact that they were deprived of the right to marry by a district court ruling against them, which didn't happen, would give them the right to appeal and appeal again. Buff the proponents of Proposition 8 weren't in the same position because they weren't ordered to do anything by the district court, and as a result it was thought they didn't suffer any injury concrete enough for the purposes of federal court standing.

CAVANAUGH: Was Proposition 8 the first state law that state officials refused to defend in court?

KOUSSER: No. This is something that happens quite often in California initiatives. Proposition 187 passed in 1994 was a ban on public services for illegal immigrants. Pete Wilson when he was governor, he defended this in courts throughout his administration. And then when the state started losing and Gray Davis was elected, Davis started a mediation process with the opponents of this initiative and settled it and stopped the state's appeal and prevented it from going up to the U.S. Supreme Court.

CAVANAUGH: Thad, is it a part of a state official's oath of office that they will defend the laws of the state?

KOUSSER: Well, that's the charge against what governor Brown and Kamala Harris did. But I think one of their defenses might be, hey, look, we had a federal judge saying this was unconstitutional to do this in our constitution! So what do we do here? We have to rely on our own values, we have to rely on what the public said in their elections. Remember, the public elected an attorney general knowing full well that she pledged not to do this. And there was this public check where we elected a governor and attorney general who were opposed to this proposition, said they wouldn't defend it in court, and those leaders said we're following the values of the voters are who elected us.

CAVANAUGH: Let me up the ante for you, Dan. When Brown did not defend Proposition 8, I believe that was in the California Supreme Court, what he said is Proposition 8 violets constitutionally protected liberties. If every liberty can be stripped away by a majority vote, then it is not a fundamental liberty. Do you think that's a valid argument for an elected official to give?

EATON: For not defending that's at question. But the merits of the case is ultimately for the Courts. If the attorney general decides not to defend a particular proposition, it begs the question of who will. Are you effectively as justice Anthony Kennedy who dissented from the Supreme Court decision, who by the way is a Californian, the question is who will defend it if the attorney general and the governor decide not to do it? If effectively said Justice Kennedy undermines this cornerstone of our governing structure to allow the governor and the attorney general to decline to defend something that the people passed. That, by the way, a power is that given to control those very same public officials.


KOUSSER: I think what Dan is getting at is the big picture here. No matter where you stand on the policy effects of this initiative, and many of us were overjoyed that anyone can get married in California now. There is collateral damage to the California initiative process, which is so inextrobaly linked to the Courts. Most have been challenged in the Courts since 1965, and about 1/3 of them have been overturned. So this happens all the time. And if state officials are able to basically deny proponents and the people their day in court with these initiatives, that could leave a great vulnerability to the voice of the people in California.

CAVANAUGH: This is, we're talking about California's initiative process, and I want to get right back to that. But I just really want to make the point, didn't the U.S. justice department also refuse to defend the defense of marriage act?

EATON: Isn't that fascinating?


EATON: Exactly right. And in the majority opinion in the opinion striking down DOMA, Anthony Kennedy said, you know what? We think that the bipartisan house members who were challenged -- who were defending DOMA have standing to do that. And then we're going to reach the merits and we're going to hold that Congress exceeded its boundaries by passing DOMA. But justices Scalia and Roberts also said, look, they didn't have standing to do that either. The house Republicans who were defending DOMA didn't have standing to do it. Justice Kennedy said, yeah, they did, and on the merits, are Congress exceeded its powers, and we're going to strike down the Defense of Marriage Act.

CAVANAUGH: From what you're saying, Thad, the larger issue, not whether or not Prop 8 was affirmed or not, but to the initiative process here in California, in outlining the fact that our elected representatives or officials sometimes decline to defend these initiatives that win at the ballot box, does that in essence make our ballot initiative sort of second-class laws?

KOUSSER: Well, I think it subjects them to a check and balance in our political system, like much of our political system does. It gives arguably the governor and the attorney general a veto over the initiative process. But that's a veto they exercise only at their peril. So I think if support for a began on marriage had remained very strong in California, the governor might have shied away from this and said, personally, I don't support this, but I'll defend if in court. The fact that public opinion is moving so clearly against Proposition 8 made the governor more able to do that. And I think we'll only see governors and attorney generals dodging these issues and staying away from them and exercising that veto when they feel like they're in line with public opinion.

CAVANAUGH: Isn't it part of the initiative process in California to get around the political system so that they don't have to go through the state legislature, but they can Trump the legislature with the will of the people?

KOUSSER: Initiatives can be passed by the people. About you they need to be implemented by governors and legislators and the statewide bureaucracy. So this is a continuing problem for our initiative process. They slow down the implementation, they steal the initiative in the title of an academic book. It shows that so many of these initiatives are not fully implemented. So in a system where it's complicated to get anything done. We often already do have these checks and balances.

EATON: The point that you made is very important. And it's one that Justice Kennedy in his dissent makes firmly. There was an irony to the Court's ruling, the majority's ruling on this. The initiative power is a power to correct or curb the public officials. And the selfsame public officials now under this court ruling are going be to able to exercise a ruling to decline to do what the people passed popular to curb their power or as a check. So this idea that sort of this is a check, Kennedy said wait a minute. Either the initiative step is a cornerstone that allows public officials to be curbed or it isn't. And elected officials can effectively veto whatever the people popularly pass in this form of governance that California and 26 other states have.

CAVANAUGH: What is the difference between the attorney general in California saying I will not defend this popularly elected law and an attorney general who says, well, I will stop the death penalty from being imposed because I am personally against it?

EATON: Well, that's a fascinating question. The death penalty you understand we're talking about whether it's a popular initiative or state law. In either case, you have the potential of a governor and attorney general simply declining to enforce the law. Now, if the law is on the books, here is a critical distinction, if the law is on the books, are hasn't been overturned, then they are bound to uphold it in its execution. Pardon the unfortunate pun. But the fact is here we have an issue of the law itself being challenged, and the attorney general and the governor walking away from it.

CAVANAUGH: The Howard Jarvis taxpayers association is already thinking about an idea to get around this issue. Can you tell us about that?

KOUSSER: Well, they're looking at potentially passing an initiative constitutional amendment to allow initiative proponents to defend their measure in courts. And I think this is a group that generally is on the right side of the political spectrum. And they're seeing California's elected officials now and in the foreseeable near future being all Democrats and saying, look, we could pass initiatives to change performance and seeing them attacked in courts and not being upheld by California's democratic leaders. I think this leaves some wickel room for those -- wiggle room for those sorts of initiatives. It's said the proponents of Prop 8 weren't harmed in this. But under this, they could potentially claim harm. So they may not need to pursue this nuclear option of an initiative constitutional amendment, but they might be wise to do it.

CAVANAUGH: Putting new wording in an initiative that would allow the proponents of an initiative have legal standing. Is that legal?

EATON: It would. The problem with the Proposition 8 standing, they're weren't given any kind of specific authority by the state constitution. They were unelected public officials with effectively a wideopen range. This is something the chief justice and one of the amicus who wrote a brief pointed out. Maybe if California law were more specific about giving them a specific brand of authority to defend propositions of which they were the chief proponent, maybe there would be a different result in federal court.

CAVANAUGH: Thad, you've done an official lot of research into the initiative process. And I'm wondering is one of the problems here that our initiatives are poorly written? That they do not hold up under constitutional scrutiny and therefore our elected officials are almost embarrassed by them?


KOUSSER: Well, there's certainly lots of drafting errors and errors of omission. But Prop 8 wasn't thrown out because of a drafting error. It was thrown out because of this core constitutional issue of can you restrict the rights of anyone who wants to get married? So even though there's a lot of movement to do initiative reform right now, one of the things is making sure that initiatives will have screening, public deliberation to cast these drafting errors, make it clear what they would do before they come to voters. None of that would have fixed the problem we're seeing here which is a majority trying to impose policy on a minority and the court striking that down.

CAVANAUGH: And I'm wondering with that screening process, is that underway or just still an idea?

KOUSSER: There are lots of groups right now, good government groups, the legislature, some groups that actually use the initiative process who are having lots of conversations in Sacramento and across the state looking at changing the initiative process. And California's retired supreme court justice, Ron George, who started Proposition 8, he's taken an outspoken role in calling for changes to the initiative process in California

EATON: I just need to correct one thing. Ron George of course was in the majority on the 4-3 decision holding that there was a right to same-sex marriage in the months before Proposition 8 was enacted. The state Supreme Court actually upheld Proposition 8 when it came before it. It was in the federal courts that it was struck down. So let's be very clear.

CAVANAUGH: You are absolutely right. I forgot about that yesterday as well.


EATON: There are so many courts involved!

CAVANAUGH: This has been a fascinating discussion. Thank you both. Thad Kousser and Dan Eaton, thank you for your time.

EATON: Thank you very much, Maureen.