Proposition 8 had been ruled unconstitutional by federal judges, and supporters of the ban appealed to the U.S. Supreme Court. Lynda Gledhill, a spokeswoman for state Attorney General Kamala Harris, said state officials have refused to defend only one initiative in the past — Proposition 14, passed by voters in 1964 to overturn fair housing laws.
Then-Gov. Pat Brown — the current governor’s father — said the initiative was discriminatory. The U.S. Supreme Court ultimately struck it down.
On Thursday, the younger Brown downplayed concerns about the Proposition 8 decision, saying a case with similar circumstances was “very, very unlikely to occur again.” He added, “If it does, we’ll be able to deal with it.”
State Senate leader Darrell Steinberg, D-Sacramento, said Brown and Harris were right to opt out of the court fight.
“No public official has the duty to enforce laws that are unconstitutional,” Steinberg said, adding that voters who disagree with officials’ actions can vote them out.
That seems unlikely as more Californians support gay marriage. A recent USC Dornsife/Los Angeles Times Poll said 58 percent of registered state voters think such unions should be legal, with only 36 percent opposed.
Many other states, including Oregon and Washington, have initiative processes that could also be affected by the Supreme Court ruling, said University of California, Davis law professor Vikram Amar.
“This is a problem for the 20 or so states that have direct democracy,” Amar said. “That’s a huge chunk of the country.”
California’s initiative process, created more than a century ago, allows residents to collect voters’ signatures to place proposals on the ballot without support from elected officials. The move toward more direct democracy was led by Gov. Hiram Johnson at a time when corrupt and wealthy railroad interests dominated the Legislature.
Initiatives on lightning-rod issues regularly appear on modern ballots, and others besides gay marriage have led to lengthy legal battles. Proposition 187, approved by voters in 1994 to block illegal immigrants’ access to public services, was struck down in federal court, for example.