Prop 8 failed at the US Supreme Court because the Court stated that the people arguing in favor of it lacked standing. Only the state, or individuals directly affected by the proposition could have standing to appeal. If a different state has been involved, and that state’s AG had done his job, then standing wouldn’t have been a problem.

Mike K:

Not true!

heart

Apologies for intruding.

In 2008, Obama was pretending to be against the legalization of gay marriage.

I absolutely think it’s worth the effort. However, it may not pass – it depends on whether people understand what is going on regarding parental rights or women’s sports or medical transition of minors, and what the initiatives’ proponents are trying to do regarding those issues. I also think that, if it does pass, the leadership of California will try to oppose it through the mechanism of the legal system. Whether they will succeed, I don’t know, but there’s precedent for the possibility of their succeeding in blocking it and most definitely precedent for their attempting to block it through the courts.

Agreed. I’m not in favor of government by referendum. You wrote, “Propositions were supposed to be a great advance for grassroots democracy. Instead they became a tool for left-wing activists and big money fixers.” I think that is inevitable. That is why the Founders made us a republic instead of a pure democracy. The Democrats have been trying to change that for quite some time.

Prop 187’s legal challenges [emphasis mine; remarks in brackets are mine]

The constitutionality of Proposition 187 was challenged by several lawsuits. On November 11, 1994, three days after the bill’s passage, Federal Judge W. Matthew Byrne [of the United States District Court for the Central District of California] issued a temporary restraining order against institution of the measure, which was filed by State Attorney General Dan Lungren.

In other words, the California state AG made the decision to challenge the referendum passed by a large majority in his own state. The restraining order was in federal court in California.

More:

After Judge Mariana Pfaelzer issued a permanent injunction of Proposition 187 in December 1994, blocking all provisions except those dealing with higher education and false documents, multiple cases were consolidated and brought before the federal court. In November 1997, Pfaelzer found the law to be unconstitutional on the basis that it infringed on the federal government’s exclusive jurisdiction over matters relating to immigration. Pfaelzer also explained that Proposition 187’s effect on the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, the congressional overhaul of the American welfare system, proved that the bill was a “scheme” to regulate immigration:

“California is powerless to enact its own legislative scheme to regulate immigration. It is likewise powerless to enact its own legislative scheme to regulate alien access to public benefits.”

Same court: United States District Court for the Central District of California.

More:

Governor Wilson appealed the ruling, which brought the case to the federal Ninth Circuit Court of Appeals. But in 1999, the newly elected Democratic Governor Gray Davis had the case brought before mediation. His administration withdrew the appeal before the courts in July 1999, effectively killing the law.

The 9th Circuit Court of Appeals is in the West – that is, California, Oregon, Washington, Hawaii, and a few other western states – but it never heard the case because the governor of California, Gray Davis, would not defend the appeal and withdrew it, letting the verdict of the lower courts (federal courts in California) stand. Gray Davis was a Democrat. Prop 187 had passed by a vote of about 59% to 41%, so it had strong support from California voters.

Now let’s look at the legal history of Prop 8. The California Supreme Court said it was constitutional, but then cases went forward on the issue to various district courts. One went to the Southern Division of the United States District Court for the Central District of California but was thrown out on a technicality. Another went to the U.S. District Court for the Northern District of California , and this is how it went [emphasis mine]:

California Attorney General, and former and later again Governor Jerry Brown backed the lawsuit, saying that Proposition 8 violates the U.S. Constitution and should be struck down. Governor Arnold Schwarzenegger took a more neutral path, saying that he supported the lawsuit because the Proposition 8 conflict asks “important constitutional questions that require and warrant judicial determination.” Because this means that the Californian government will not defend the law in court, the proponents of Proposition 8’s campaign were granted the right to intervene as defendants. The case was first heard on July 2, 2009, in the United States District Court for the Northern District of California in San Francisco, Judge Vaughn R. Walker presiding.

In an act unprecedented in California history both the Governor and Attorney General refused to defend a constitutional amendment.

So the government officials either fought it or refused to defend it – which was unprecedented in California history. Judge Walker ruled against it, declaring it unconstitutional. The state once again refused to appeal (that’s the AG and the governor). Later, the Ninth Circuit Court of Appeals upheld the ruling that it was unconstitutional. An appeal went to SCOTUS, but the Supreme Court did not hear the case on the merits; the ruling had to do with lack of standing. Other challenges were mounted by Prop 8’s backers, and the California Supreme Court denied them.

I think we can safely say that the two propositions were not defended by California AGs or governors (except for Wilson quite early on), were not upheld by the California courts (except initially for 187), and were not upheld by the federal district courts in California either. The latter are federal courts and apply federal law, but they operate in California and the judges were Californians, and district courts partake of the atmospheres of the regions in which they operate.

If the report is that the courts are not a democratic (small d) institution, that is dog bites man.

Some ballot measures which might sound similar actually had opposite effects.

Propositions were supposed to be a great advance for grassroots democracy. Instead they became a tool for left-wing activists and big money fixers.