When I went to San Francisco last week to cover the Prop 8 trial, I indicated that I would be watching for something specific from the Marriage Redefiners. Will they try to distinguish their case:
That is, will they try to come up with some argument that distinguishes the Proponents of Prop 8 from Proponents of other potential ballot initiatives. If they make no attempt to do that, we might conclude that they don’t care whether they destroy the initiative process. They just want what they want, and they don’t care about collateral damage.
I knew that I cared about this, as a fundamental issue of fairness and good government. Will the Marriage Redefinition Crusaders gut the initiative process, just to get the outcome they want? I wasn’t prepared for the extent to which the justices of the CA Supreme Court cared.
I am sorry, but not surprised, to report that Ted Olsen made no serious effort to create a legal argument that would apply to Prop 8 and not to other ballot measures. The Justices were appalled by his cavalier attitude toward the voters. The justices brought up the sovereignty of the people. The justices clearly value the fundamental right of the citizens to participate in a meaningful initiative process, and are most reluctant to gut that right.
Justice Carol Corrigan observed that Olsen’s theory would give the Attorney General the right to ‘pocket veto’ any voter initiative. Justice Joyce Kennard noted that to agree with Olsen is to nullify the power of the people. Justice Kathryn Werdegar noted that “we” (meaning the Supreme Court of California) have always given ballot Proponents standing in court. But Chief Justice Tani Cantil-Sakauye noted that this case was the first case in history in which the Proponents were the sole defenders of a measure. In past cases, the Proponents have stood “shoulder to shoulder” with the Attorney General. She asked what would happen to the state’s interest in a law, if the Attorney General refused to defend it. “Does the state’s interest evaporate?”
Even the newest member of the California Supreme Court, the notoriously liberal advocate of marriage redefinition, Justice Goodwin Liu, balked at the breathtaking claims advanced by Ted Olsen. “Doesn’t it blinker reality?” he asked, to assert that ballot Proponents are no different from any other citizen who voted for Prop 8?
The ultimate challenge to Olsen’s theory came from Justice Ming Chin, “Would you really have us hearing only one side of this case today?” Olsen did not exactly answer that question directly. But in effect, his answer was yes, he would have the court hearing only one side of the case: his own side.
The Justices of the California Supreme Court, a body which has no problem with redefining marriage, was visibly appalled by the expansive theories offered by Ted Olsen. Our friend Leo calls the behavior of the Marriage Redefiners in this case “lawfare.” I agree with Leo.