What the Supreme Court's Prop. 8 Ruling Means for Voter-Approved Laws

The U.S. Supreme Court ruled that private citizens can't defend a state law in federal court -- a decision with potentially widespread implications for cases involving voter-approved laws.

The U.S. Supreme Court’s decision to dismiss the case over California’s gay marriage ban on standing grounds could have serious implications for other states that allow voters to pass laws through the initiative process.

In the case, Perry v. Hollingsworth, California officials declined to defend the state law, which had been passed by voter referendum in 2008, in either federal appeals court or the Supreme Court. Instead, the private citizens who had supported the referendum had taken up the case to defend it before the Ninth Circuit Court of Appeals.

The California Supreme Court allowed them to do so and then the appeals court overturned the ban, so the private citizens appealed to the U.S. Supreme Court. The Court questioned at oral arguments in March whether private citizens had legal standing to defend a state law, as that is traditionally the role of state government.

On Wednesday, Chief Justice John Roberts and four of his colleagues ruled that they did not. His rationale was that the private citizens did not have a specific grievance which gave them standing to appear before the Court. Federal law requires an actual and specific controversy or injury for the Court to hear a case, he wrote, and one was not present in the Perry case.

MAP: See which states approve and which states ban gay marriage.

“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” Roberts wrote. “We decline to do so for the first time here.”

During oral arguments, as Governing reported, some of the justices questioned if the Court would set a dangerous precedent if it dismissed the case on standing. Their reasoning was that it would allow state officials to effectively neuter the voter referendum process by refusing to defend in court voter-passed laws that they don’t like.

Justice Anthony Kennedy raised those concerns again Wednesday in his dissent, noting that 26 states allow voters to pass laws through ballot initiatives and argued that the Roberts decision could therefore impact them.

“The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials,” Kennedy wrote. “Giving the governor and attorney general this de facto veto will erode one of the cornerstones of the state’s governmental structure. In light of the frequency with which initiatives’ opponents resort to litigation, the impact of that veto could be substantial.”

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The long-term implications of the Court’s Perry ruling remain to be seen, but some speculate that it could have a significant impact on the voter referendum process. It appears to set a precedent that private citizens cannot step in when state officials decline to defend a state law from legal challenges.

"Of course, only time will tell what the ramifications are, but I think it is a legitimate concern," says Tara Grove, a law professor at the College of William and Mary.  "The question raised by the decision is: If a state is not willing to defend a law, then who is? The Court's decision makes it harder to delegate that power to private parties."

While they acknowledge that the decision could set such a precedent, others point out that there have been relatively few cases where state officials refuse to defend a state law in court. Some noted that the Perry case was the first in which this question had been explicitly raised. Thus, the practical impact might not be that substantial. 

"It does seem possible that this could happen again that no state actor will appeal a loss on a law the state is unwilling to defend," says Lisa Soronen, executive director of the State Legal Law Center. "But it doesn’t seem like something that would happen all that often."

Still others, however, argued that the Court made the right decision. Allowing private individuals to assume a state government's role "would have created enormous political problems," wrote Suzanne Goldberg, a law professor at Columbia University, on SCOTUSblog. The Court's decision instead ensured that the longstanding requirement that parties have "a direct and particularized interest in the case they pursue" remained in place, she concluded.

There could be a legislative remedy to the somewhat unsettling idea that state officials could effectively veto voter initiatives, says Ernest Young, a law professor at Duke University. States could alter their initiative laws to designate an initiative's sponsors or even an independent ombudsman as the party who would defend an initiative's constitutionality in court.

To address some Roberts's cited concerns, the legislation could call for public supervision of any litigation, public funding of the legal costs and a time limit on the sponsors' involvement, he says.

"All of these factors were cited in the Chief's majority opinion as missing indicia of agent status, but they're readily fixable by state legislation," Young says.

The Perry decision is below.

Dylan Scott is a GOVERNING staff writer.