Leaders in the gay rights movement do us all a disservice — gay and straight alike — when they stir up passions over non-issues. Yesterday’s argument in California’s Supreme Court over standing in the Prop. 8 case is the latest example of whipping people into a needless frenzy that will ultimately feed cynicism.
The case was not about any gay rights issue. In the course of the proceedings over appealing the district court’s decision overturning Prop. 8, a fascinating and unique issue arose about whether the proponents of an initiative have standing in federal court to appeal it. This question came up because neither the Governor nor the state Attorney General chose to appeal, leaving the proponents as the only ones willing to carry the burden. However, under federal court rules, parties must have proper standing to bring the case to the court of appeal. The federal courts have very limited jurisdiction over cases, unlike state courts.
Normally, some part of a state’s government will defend a citizen-initiated law if necessary. But both the Governor and the Attorney General felt the court got it right, and declined. The proponents, therefore, stepped in. However, some cases have said initiative proponents don’t have standing in the federal courts. But no case dealt with the issue here, where there is no one to defend an initiative except the proponents.
There is a far more at stake in this case than just gay equality. In California, the courts have consistently ruled that the legislature — and the executive and the judiciary — have only derivative powers. Those powers do not come from God, but from the people, who are the ultimate source of all government. The Prop. 8 appeal brings that into the spotlight. If the government will not defend a law passed by the people using their superior legislative power, and the proponents of that law cannot, themselves, defend it, then, in fact, the government is superior to the people, and can veto their efforts.
It is, of course, convenient for those of us who believe strongly in equality, to have the appeal die for want of a champion. That is what made Ted Olson’s life so hard yesterday, as the justices hammered him about his theory. Olson is nothing less than a superstar, and watching him defend what is ultimately an indefensible position was a marvel. We cannot be grateful enough to have him on our side.
There are certainly some significant legal questions around the edges of what he was proposing, and it was a joy watching him try to tempt the judges with those. But Justice Carol Corrigan called him out for “nibbling” at these distractions. The real issue in this case is whether the government can nullify a vote of the people by denying them a voice in the federal courts. If this is a gay issue, it means that gay rights requires placing our complete and total trust in the government, now and forever. We’re fortunate in this case that our interests are aligned with those of California’s current politicians. I’m very skeptical about this as a permanent rule, though.
I have no doubt at all that Prop. 8 is a violation of the federal constitution, and that the district court’s ruling will finally be upheld. But the easy win will come at too great a cost. The corruption and overreach in California’s legislature in 1911 that led to the initiative is never far from my mind. Even when I agree with the political branches on the merits, as I do here, I think it is too dangerous to aggrandize the government at the expense of the people’s ultimate authority over government. While I think the majority vote was invalid under the federal constitution, I’d rather give that majority its voice in the courts now, and maintain for the future the ability to control the state government if that ever becomes necessary again.
And when “we” ultimately lose this case (I will not be surprised to see a 7-0 vote in favor of the proponents), I hope the anger is not directed at the courts. That is the risk of the fund-raising tactics that drive these non-issues — that the anger and fear our leaders are stirring up will be misdirected. The Prop. 8 case, itself, is our issue as lesbians and gay men. The standing case is our issue only to the extent we are citizens who have an interest in how much power we have granted to our government.