What Precedent Does Perry Set?

Jun 26 2013 @ 2:03pm

Ed Morrissey is bothered by the Prop 8 decision:

The voters in California amended the state constitution by referendum legally, to define a legitimate government policy regarding the recognition of marriage. The court is making the case that this is a matter for California to settle, not the federal courts, and there is a very good case to make there. However, the effect of this is to overturn an election whose legality was never in doubt just because some people didn’t like the outcome. That to me is a more dangerous outcome than a precedent-setting decision on standing.

Scott Lemieux also has misgivings:

[W]hile I’m happy the Prop 8 will be struck down standing is the worst grounds for a good outcome: it’s a pernicious argument. The courts shouldn’t be foreclosed from hearing appeals just because the current government declines to defend a law.

Kevin Drum makes a related point:

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.

To me, this has neither the flavor of justice nor of democratic governance, regardless of whether I like the outcome.