An unintended consequence of the Supreme Court's Prop 8 ruling: A chilling effect on California's initiatives?

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The most immediate effect of the Supreme Court’s ruling on Proposition 8 is to pave the way for gay marriages to resume in California. But there could also be another unintended consequence: Weakening the voter-approved initiative process.

That has united both those who favor and oppose gay marriage in criticizing the court's rationale.

By a five to four vote, the justices decided that the private citizens defending Prop 8 didn’t have legal standing to do so. So the decision by the trial court – which ruled that the initiative was unconstitutional – will soon be the law in California.

But those citizens defending the gay marriage ban did so because state officials refused.

And so, the high court’s decision, as dissenting Justice Anthony Kennedy wrote, could set a precedent.

“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.”

Some legal experts in California agree with Kennedy's reasoning.

“This leaves the initiative and the millions of people who voted for it undefended,” said Harold Johnson, staff attorney at the Pacific Legal Foundation, which filed a friends-of-the court brief arguing the sponsors of Prop 8 should be allowed to defend it.

“Basically you have a situation where elected officials can enact a backdoor veto on duly elected initiatives,” Johnson said.

His group didn’t take a stand on the merits of Prop 8, but Erwin Chemerinsky did. He’s a constitutional law scholar and dean of the UC-Irvine School of Law.

“I strongly opposed Proposition 8. But I also know in the future there might a progressive initiative I support that a conservative attorney general might nullify,” said Chemerinsky.

He sees a simple solution.

“California should pass a law that provides the appointment of special counsel to make sure the law is defended,” said Chemerinsky.

One of those elected officials who declined to defend Prop 8 is Governor Jerry Brown. He said Thursday he's against a law that would require a special counsel because this was a unique circumstance.

“I think this case is, if I can invoke a Latin phrase – sui generis," said Brown.” “That means it’s of its own kind or nature – very unlikely to occur again and if it does we’ll be able to deal with it.” 

Even though it’s rare that a governor or attorney general would not defend an initiative, knowing it’s a possibility could deter backers of future initiatives, according to Bob Stern, a former chairman of the Center for Governmental Studies.

“In a few cases that are very sensitive, it could chill potential donors and supporters,” said Stern.

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