There are two main lines of argument being offered about why the Supreme Courts decision to send Prop 8 back to the lower court ruling is wrong. Ed Morrissey writes:
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.
This is wrong. It wasn’t because some people “didn’t like” the outcome, it was because those people were directly impacted by the result of the outcome. The law directly affected them in a personal AND material way. Thus, the challengers of Prop 8 did have standing. The people defending the law had a “like” issue: they were the ones who “didn’t like” that the law was being challenged. But as the Supreme Court correctly showed today, you have to have more than an issue of liking or not liking a law or ruling to have standing and challenge a law in the courts… You have to have been directly affected by that law, or, in this case, the outcome of a lower court trial.
Remember, due to lack of standing, Michael Newdow failed in his bid to get “Under God” taken out of the “Pledge Of Allegiance”. If you were going to grade on a curve, because his case involved his daughter, one could argue that he actually had more standing in his Supreme effort than the defenders of Prop 8 did, yet Conservatives had no problem with the dismissal of that case due to lack of standing at the time.
Another criticism concerning this ruling is that it short circuits the initiative process. Here is how Kevin Drum puts it:
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.
I think this point does have some merit, especially since the initiative system was put into place to bypass what was at the time viewed by the public as an unresponsive and corrupt California government. But what are the options here? Should an initiative that is passed be immune to the scrutiny of the court?
I ask you, if the citizens of this strongly liberal state decided to put an initiative on the ballot to ban the Republican Party from the state, which would probably almost certainly pass…. Conservatives; wouldn’t you absolutely demand to take this to court to challenge it and have it overturned? Of course, maybe this is a bad example. They wouldn’t need that initiative, as the Republican Party is almost non-existent anyway. 🙂
On the state deciding to defend or not defend a law…. If the state, which doesn’t like the law, is forced to defend it, there is every likelihood that they will not defend the law to the best of their capabilities, thus still resulting in a short circuit of the system anyway.
Note, there have been several cases in the Federal realm where the Dept of Justice had decided not to defend a law, under G W Bush, under Clinton, under G H W Bush, and even under Ronald Reagan. The circumstances in each case has some differences, but the gist of it is that the executive and law enforcement branch felt there was no way to mount a serious and winnable defense of said laws that each ended up refusing to defend.
I have been able so far to find only one other case to point to on the state level where the state has taken the same path and not defended a statute. It does again deal with same sex marriage, so take this with a grain of salt:
Some legal ethics experts say that prosecutors are obligated to defend the laws of their jurisdiction. “A state’s attorney doesn’t get to pick and choose what laws she wants to prosecute,” says David A. Erickson, a retired justice of the Illinois Appellate Court and the director of the criminal litigation program at the Illinois Institute of Technology’s Chicago-Kent College of Law. “What if the state’s attorney was a person who doesn’t believe in hate crimes? You can’t just say I’m not going to enforce this law or defend it because I don’t believe in it or I don’t think so. That’s flat-out wrong.”
But R. Michael Cassidy, who teaches prosecutorial ethics at Boston College Law School, counters that a prosecutor facing the enforcement of a controversial law may actually have a duty to refuse the case. First off, Cassidy says, states generally have a definition of a prosecutor’s role and responsibilities. In Illinois, for example, the state’s attorney has a duty to defend the state constitution.
“You can’t really say the responsibility to defend statutes outweighs the responsibility to defend the constitution,” Cassidy says. “If they truly believe the statute violates the constitution, their responsibility to uphold the constitution trumps the duty to defend the statute.”
In addition, Rule 3.1 of the American Bar Association’s Model Rules of Professional Conduct, which Illinois has adopted, says that a lawyer shall not bring or defend a proceeding or assert or controvert an issue unless there’s a basis in law and fact.
“Essentially we don’t want lawyers asserting frivolous claims. It’s be-neath the dignity of the profession and wastes resources,” Cassidy says. “If a state’s attorney decides there is no reasonable likelihood of success, then they have an ethical responsibility not to defend the statute because such a defense would be frivolous.”
I don’t think this is an easy question that can be easily brushed aside. In the case of Prop 8, I think it’s more of a problem with the initiate system out here in California; it’s so easy to push one of these things through, if you sneeze in just the right way, you likely to accidentally get an initiate on the ballot, and even amend the state Constitution, as was the attempt here. Amending the Constitution, should be a difficult process, not the mere passing of a single ballot. The Federal procedure to amend the Constitution, with all it’s hoops to jump through, is to my mind a great safeguard against passing such a thing on public whim, as was done here.
I guess here is the question – should we hold states to a different standard when defending laws they don’t think are Constitutional than is applied to at Federal level?
PS. When time permits, I’ll see if I can find some more state cases and get a better feel for how often this refusal to defend a law is on the state level.
Life | Sonicfrog July 29, 2013 | 
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