Friday, June 28, 2013


Photo by Richard Johnstone


In Hollingsworth v. Perry the Supreme Court ruled not on the merits of the case or the constitutionality of the measure,  but that the proponents of Proposition 8 had no legal standing to bring the case forward.  Vacating the decision of the 9th US Circuit Court of Appeals,  the measure is returned to the District Court that initially held it unconstitutional with instructions to dismiss.


I have to agree with Kennedy on this one,  that 

The Court's reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied. The Court's decision also has implications for the 26 other States that use an initiative or popular referendum system and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation.

Merits of the case aside, the people of California spoke, their elected officials effectively ignored them, choosing not to defend a measure passed by the people that they themselves disagreed with.

The Outcome

Sadly, the repercussions of this ruling has little to do with Gay Rights and everything to do with Our Rights.  Kevin Drum at Mother Jones summed it up nicely:

In California, it's routine for the people to pass initiatives that neither the governor nor the legislature supports. In fact, that was the whole point of the initiative process when it was created. In cases like these, of course the governor and legislature are going to decline to defend the law in court. With today's decision, the Supreme Court is basically gutting the people's right to pass initiatives that elected officials don't like and then to defend them all the way to the highest court in the land. 

 The only recourse left to the people of California is to remove these officials from office,  but then the fallout from this is unlikely to last until the next election cycle, and the harm has already been done.

Chalk this one up as a win for the Politicians and Bureaucrats and against the People.

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