“State officials have the right to act as a check on the people’s power” in Prop. 8 battle
Pajamas Media
Here is the rough sequence of events, again, having to do with gay marriage, but in your minds, substitute "CHL law," or "expiration of assault weapons ban," or "right to keep and bear arms," and you should be rightly terrified of where this line of reasoning leads:There comes a time in every lawyer’s career when, in order to win a case, you find yourself making an argument so absurd that even you don’t believe it. That must have been how distinguished attorney Theodore B. Olson felt when he recently tried to convince the California Supreme Court that “state officials have the right to act as a check on the people’s power.”
I’ve been trying to wrap my brain around that line of reasoning ever since I first read of it yesterday, but I keep coming to the same conclusion: that Olson’s stance is the fast lane to totalitarianism.
How did a high-profile constitutional lawyer arrive at this quite remarkable moment in his career?
The quote in question can be found in this L.A. Times article about the latest wrinkles in California’s endless legal struggle over Proposition 8, the gay marriage ban:
{snip}During Tuesday’s hearing, Chief Justice Tani Cantil-Sakauye suggested that there would be no one to “safeguard the precious power” of citizen initiatives if their sponsors were not allowed to defend them.
“Doesn’t that make the initiative process illusory?” she asked.
Justice Carol A. Corrigan pointed out that the courts, not the governor or the attorney general, are supposed to decide a law’s constitutionality. She asked whether elected officials have “pocket vetoes” over voters.
The state high court has long allowed sponsors to defend ballot measures, but has never before ruled on whether they have an automatic right to do so.
Charles J. Cooper, representing ProtectMarriage, told the court that initiative sponsors represent the state, especially “when state executive officials have refused to do their duty.”
But Theodore B. Olson, a lawyer for two same-sex couples challenging Proposition 8, argued the California Constitution gives only state officials the right to represent the people in court, and state officials have the right to act as a check on the people’s power.
Wow. That’s quite a statement. My interpretation of this line of reasoning is that democracy, the will of the people, and the power to vote on laws, are all null and void if bureaucrats decide that the populace is exercising to much “power.”
As far as I can tell, this isn’t just a slippery slope: It’s a sheer cliff straight into totalitarianism. Because if state officials can simply ignore or discard laws they don’t like, then what’s the point of having elections in the first place?
- 2000: California voters overwhelmingly pass Proposition 22, affirming marriage as being between a man and a woman.
- 2004: mayor of San Francisco begins performing gay marriages in violation of state law. Those marriages are quickly invalidated.
- 2005: state legislature makes gay marriage legal, in defiance of Prop 22. Schwarzenegger vetoes it.
- 2008: California Supreme Court invalidates Prop 22 as being in violation of California Constitution.
- 2008: California voters react by overwhelmingly passing Proposition 8, amending the state's Constitution to define marriage as being between a man and a woman.
- Gay marriage proponents immediately challenge Prop 8 as a violation of the U.S. Constitution. As the case wends its way through the lower courts, represented by Ted Olson, the California AG defends it, as per custom.
- 2010: Jerry Brown is elected governor. He and his AG, Kamala Harris, decide that they will no longer defend the will of the people because they disagree with it, never mind that it has been law for 2 years.
- Prop. 8′s sponsors then asked the courts to be allowed step in and appeal the ruling themselves, and do the job that the Brown and Harris refused to do.
- Gay marriage proponents argue that Prop 8's sponsors do not have "standing" in the case on the principle that they do not have the right to defend a state law.
- The case is now before the state Supreme Court, and gay marriage proponents continue to argue that Prop 8's sponsors do not have standing, and that if the state AG will not defend the law, then it should be a dead matter. It's proponents are arguing that this issue has been settled repeatedly by the voters, represents the clear will of the voters, and that the refusal of the state's AG to defend the peoples' will as reflected in state's amended Constitution which was amended before the AG was elected, is in itself unconstitutional.
- 9/7/2011: Ted Olson makes the argument before the court that elected officials have the right to act as a check on the people's power.
But on a larger scale, as Pajama Media points out, the results of what happens in California will have national implications because the case could go as far as SCOTUS. Imagine the following hypothetical scenario:
- California voters get fed up and overwhelmingly pass a ballot initiative creating a Shall Issue concealed carry law.
- HCI challenges it.
- The next AG decides not to defend it because he/she dislikes the 2nd Amendment.
- Initiative supporters request that the state court grant them standing to defend the initiative.
- HCI argues that they do not have standing, only the governor and AG have standing and that this a US Constitutional issue.
- HCI wins in the state court.
- Initiative proponents appeal to the federal courts.
- The federal courts rule that this is a state matter
- Concealed carry is suddenly at risk in virtually every state in the union.
