Lehigh University
Lehigh University


A Dark Day for Democracy

George Nation, a finance and law professor at Lehigh University, says the U.S. Supreme Court damaged democracy and misrepresented sovereignty with its latest decisions involving same sex marriage. Here's his rationale:

Last month, on the last day of the 2012 term, the Supreme Court issued rulings in two cases involving same sex marriage. Both decisions gave proponents of gay rights cause for celebration. Unfortunately, a bright day for equal rights was, for reasons unrelated to gay marriage, a dark day for democracy.

In United States v. Windsor, the court found the Defense of Marriage Act  unconstitutional, and this is a very important victory for married gay couples. But, since the Majority’s reasoning is muddled it’s not clear if the result is based on federalism or equal protection grounds. Thus, we do not know if this decision represents a significant advancement for gay rights nationally.

In Hollingsworth v. Perry, the Court’s decision had the effect of voiding Prop 8, the ballot initiative that amended California’s Constitution to ban gay marriage. But, the Court decided Hollingsworth without ruling on the merits of the case. The five Justices in the Majority, led by Chief Justice Roberts, took a shortcut and decided the case on a specious standing argument. Not only did their shortcut deprive the country of a ruling on the constitutionality of denying same-sex couples the right to marry, it did significant damage to democracy to boot.
The Majority’s ill-advised and shortsighted opinion in Hollingsworth is likely to produce pernicious consequences for direct democracy. Moreover, the disrespect shown by the Majority for California’s initiative process in particular, direct democracy in general (which 26 other states embrace and which has also been used to legalize gay marriage) and for the California Supreme Court, was completely unnecessary to finding Prop 8 unconstitutional. The court could have achieved this result more persuasively and efficaciously by upholding the ruling of the Ninth Circuit Court of Appeals, which was limited to restoring the right to gay marriage in California.

In Hollingsworth, California’s elected officials refused to appeal the District Court’s finding that Prop 8 was unconstitutional. Because the State government failed to appeal the decision, and thus to defend a law duly passed by the people of California, the backers of Prop 8 appealed. The California Supreme Court ruled, quite correctly because the case involved a law passed by direct democracy, that the backers of Prop 8 had standing to defend the law. The Ninth Circuit allowed the case to proceed and ultimately ruled, on the merits of the case, that Prop 8 was void because it violates the U.S. Constitution.

However, the U.S. Supreme Court rejected the finding of the California Supreme Court regarding the standing of the sponsors of Prop 8, and vacated the Ninth Circuit’s decision, leaving the District Court’s decision as the final one. The Majority based their rejection on the fact that the sponsors never received a special grant authority from State officials to represent California. The Majority completely disregarded the nature of the initiative process in California, including the fact that the sponsors received the approval of a majority of California voters for Prop 8. 

The Majority’s opinion does not respect the right California citizens’ possess to make law by using the initiative process. In effect, Hollingsworth grants state governments a pocket veto for any direct democracy results they don’t like. If the state government does not like a law passed by initiative, the government need only find an amenable trial court judge to rule the initiative unconstitutional and then do nothing. The failure of the state officials to defend the law will render it void with no further court review.

This result has the potential to completely eviscerate the initiative process. Laws, including state constitutional amendments passed by initiative (like laws passed by the legislature) are subject to judicial review and are void if they violate the federal Constitution. They should not, however, be subject to veto by the State government. The purpose of direct democracy is to allow voters to legislate without the approval of the government. The initiative process recognizes the fundamental truth that the only sovereign in our system of government is the people, from whom all governing rights flow. If the people become dissatisfied with the representation provided by their elected officials, the initiative process allows them to exercise their fundamental right to self-government directly. Sovereignty resides in the people, not the government. The people don't require a grant from government to have authority; government requires a grant of authority from the people. It is frightening to think that five Supreme Court Justices fail, willfully or otherwise, to grasp this fundamental truth. 

Story by Jordan Reese

Posted on Friday, July 12, 2013

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