This is an interesting and perhaps unintended consequence of the legal challenge against California’s Proposition 8. The 9th Circuit panel considering the appeal to Prop 8’s (un)constitutionality sent (part of) the case back to the California Supreme Court to determine who has standing under California law to defend a state law. As neither the (then) governor nor the (then) attorney general of California appealed the federal district court ruling striking down Proposition 8, it’s an open question. If the state refuses to defend its own law, and private citizens lack standing, then the law is struck down by default.
Although I fake it at times in class, I’m not a constitutional (or legal) scholar, so I’ll direct interested parties here for a detailed discussion on the standing issue. Approaching this question from an institutional and electoral (direct democracy) perspective, I see some troubling precedents in this case. While I can speak for my fellow LGM authors in suggesting that the blog (and the vast majority of our readers) is opposed to Proposition 8 as policy, this is a procedural / institutional question, not an outcomes question. If the state can effectively veto “any voter initiative by not defending the state’s voter initiated law in court”, to quote my colleague Todd Donovan, what prevents a Republican-run state (i.e. the governor, attorney general, etc.) from effectively vetoing a progressive initiative voted into law by the electorate?
Jessica Levinson in the above-cited HuffPost article suggests that this might not be a problem:
Is that a problem? Maybe not. The judiciary stands as an important check against the majority. The judicial branch is designed as a break against decisions by the majority that can harm minorities. The judiciary is in many ways the last stop on the train to tyranny of the majority.
I’m partially sympathetic to the reasoning, but not to the ultimate implication. Yes, the judiciary is central in defending the rights of the minority against the tyranny of the majority, and in applying constitutional oversight (of course now that we have the Republicans running the House, we can do away with the judiciary altogether). However, I’m of a mind that for these cases to be effectively decided, the majority ought to be represented. As a citizen initiative approved by the electorate becomes state law, it is incumbent upon the state to defend said law in court.
The alternative is to allow private groups, with interests more narrowly defined than the state interest, standing in such cases, and I’m not entirely comfortable with that. Yet our system has more than enough veto points designed into it that I suspect we really don’t need another.