The Ninth Circuit Court of Appeals is grappling with standing, an unsexy but important question in the Proposition 8 federal case.  Namely:  the plaintiffs–couples who want to marry and are denied access to marriage–have standing to bring their complaint to the federal courts.  But who has standing to defend Proposition 8?  One county tried to claim it, and the judges threw that part out.

When they heard the case several weeks ago, the judges asked many interesting questions, and some challenging ones, about the question of standing.  One judge was quite sharp in asking whether the governor (then Arnold Schwarzenegger) and attorney general (then Jerry Brown) had effectively vetoed a law by refusing to defend it in court.  I thought that was going a little far, but it did get at a good point:  if the government of the state won’t defend a law when it is challenged, is that government doing right by the legislators, and by the will of the people?

Years ago, when I was living in Vermont, and the state Supreme Court was tackling the question of whether the state’s equal protection clause mandated marriage equality, I bought a raffle ticket from my county Democratic Party and won a lunch with the state’s attorney general.  I knew he was named in the lawsuit, and asked him about the fight.  He said frankly that it was one of those cases where plenty of people in his office agreed with the challenge to the law.  (He didn’t say his own opinion, and I neither thought it was appropriate to ask him, nor would reveal it here if he had.  He paid for the lunch.)  But, he said, part of the job description of the state’s attorney general is to represent the state in any lawsuits against it, and since Vermont was the party named in the suit, their role was to take its side.

In that regard, he and his staff were like the defense attorney in a criminal case (this is my extrapolation–he knew the difference between civil and criminal law).  Defendants must have representation; their lawyers must do their best to get them acquitted; our justice system depends on it.  Switching back to the realm of civil laws and state governments, Vermont had duly passed various laws and it was the attorney general’s job to defend them.  If he didn’t, then the people who passed the laws (the legislators) and the people whom they represented (the citizens) were being shortchanged.  I don’t know if this is legally compelling, but I find it morally so.

So I ought to look askance at Schwarzenegger and Brown’s refusal to defend Prop 8.  I do think it might have been bad strategically, but I don’t think it was morally wrong.  Instead, it illuminates one of the major problems with our crazy ballot proposition system:  the people, voting on a ballot measure, are a fourth branch of government that has not been fit into the system of checks and balances.

Remember checks and balances?  You learned about them in civics, or maybe it was called social studies.  We have three branches of government, with different roles, and they check each other.  The executive has to abide by the laws set by the legislature.  The legislature can’t create any laws that violate the constitution, as interpreted by the judiciary.  The judiciary is chosen by the executive, with confirmation by the legislature.  Et cetera.  Now California has created a fourth branch, but where are the checks and balances?

Plenty of people argued that the state Supreme Court didn’t have the right to cancel out the people’s vote by ruling unconstitutional laws that excluded same-sex couples from marriage. Well, they’re idiots.  Of course it did.  Ruling on the constitutionality of a law is not only the judiciary’s right, it’s its obligation, and furthermore, in doing so, it is doing its part to uphold the will of the people as well–the will of the people as enshrined in the constitution. 

The people then did the only thing they could do to remedy such an injustice, if they thought letting same-sex couples marry is an injustice, which for some reason they did:  amend the constitution, in this case via a ballot proposition.  Game over.  The state Supreme Court might like the amendment or it might not, but there it is, a part of the constitution:  marriage is only allowed between one man and one woman.  (Of course, this new line contradicts other parts of the constitution, but I won’t even go into that.  Nor will I rant about the stupidity of having a constitution be so easily amended–at least not today.)

But here’s the rub.  I’ve read many ballot propositions, and some of them build in an immunity to checks and balances.  Their text says that if they’re passed, no legislature can overturn them, or only a supermajority can do so.  This is absurd.  Any act of the legislature can be reversed by a subsequent act of the legislature.  They don’t get to say “. . . and neener neener, if you don’t like this, future legislators, too bad.”

Yet that’s what these ballot propositions say:  that a direct vote by the people supersedes a vote by the people’s representatives.  This just does not work, unless it is part of a carefully calibrated system of checks and balances, such as applies to the other three branches of government.

So if “the people” lack standing, well, we asked for it.  If legislation passed by direct vote isn’t subject to the checks of the other branches of government, then it’s a bit much to ask another branch to defend it.