Margaret A. Bengs: Will of the voters is disdained when elected officials ignore their duty to defend laws

Published: Tuesday, Mar. 26, 2013 - 12:00 am | Page 11A
Last Modified: Tuesday, Mar. 26, 2013 - 9:19 am

The U.S. Supreme Court will hear oral arguments today on Proposition 8, the 2008 ballot measure passed by more than 7 million California voters that engraves the traditional definition of marriage in the state constitution.

The California Supreme Court upheld Proposition 8 in 2009, but federal district court Judge Vaughn Walker in San Francisco later ruled it unconstitutional, a decision upheld by a divided panel of the 9th U.S. Circuit Court of Appeals. The measure is now before the country's highest court.

Two questions will be decided: whether the Equal Protection Clause of the U.S. Constitution prevents California from defining marriage as the union of a man and a woman, and whether defenders of the initiative have "standing" – that is, whether they meet the eligibility requirements to bring the case to court.

Some Proposition 8 opponents, perhaps sensing that they may lose on the first question, as some experts believe, have mounted a vigorous new attack on the second one.

Last month, California Attorney General Kamala Harris filed a 45-page brief with the court that presents this remarkable argument: California state officeholders whose duty was to defend the measure, including the governor and attorney general, "unanimously decided not to appeal" Walker's decision, but Proposition 8 proponents can't defend the measure either because they lack "standing to appeal."

Under this theory of justice, 7 million people will have no one to represent them. A handful of state officials will trump the people's right to be heard in court.

The 9th Circuit had found that Proposition 8 proponents have the right to appeal Walker's decision based on a unanimous ruling by the California Supreme Court, authored by Chief Justice Tani Cantil-Sakauye, that under California law, the official proponents of an initiative measure have authority to defend it when the public officials charged with that duty refuse to do so.

But Harris disagrees. To qualify for "standing," a party must show a form of harm or "injury." When a judge bars a law from being enforced, as Walker did with Proposition 8, the only valid "injury," the brief states, is to enforcement authorities.

Yet all state officials with enforcement authority refused to appeal Walker's decision. This left Proposition 8's proponents including its author, Folsom attorney Andrew Pugno, to defend it.

But, Harris argues, since Proposition 8 proponents "have no authority to enforce state law," they suffered no eligible "injury," so the 9th Circuit "should have dismissed the appeal for lack of jurisdiction at the outset."

Furthermore, allowing Proposition 8 proponents to defend it in court also violates "constitutional principles of democratic process and political accountability."

What's that, again? Where state officials "find that public support for a law has waned," or "the constitutionality of the statute has been called into question, their decision to defend or not to defend state law is most likely to reflect current public opinion."

If the brief is referring to a recent state Field Poll showing increased support for same-sex marriage, does that mean that we are to govern by public opinion polls, or by the law? And if a measure's constitutionality has been called into question, do we assume its illegitimacy while the case is still in court?

But not to worry. "When California officials decline to defend a challenged law, and that decision is unpopular, they can be removed from office at the next election or in extraordinary instances recalled."

Does that mean that state officials can stop enforcing any other laws being challenged in court – maybe some environmental laws, for example – and just wait and see if they're re-elected or recalled?

Unlike state officials, Proposition 8 proponents, the brief claims, are only "private citizens with no political accountability," and "at best" represent public opinion "at the moment in time when the measure was enacted."

But didn't Harris just say that state officials can make decisions based on what they perceive as public opinion at any moment in time? Are any laws, in fact, valid since public opinion might change?

The initiative's proponents appear more politically accountable as they are defending the voters, while the voters' purported representatives are not.

Such maneuvering to quash any defense for the people who voted is an affront to our system of government – and unnecessary. If the U.S. Supreme Court upholds Proposition 8 and those favoring gay marriage want to put another measure on the ballot, they can. If public opinion has changed, the people can change the law.

No matter what one's view of same-sex marriage, we should all be concerned for our freedoms when our legitimate democratic processes are hijacked by a ruling elite.

Margaret A. Bengs is a former state agency spokeswoman and political speechwriter who lives in Carmichael. Reach her at

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