Some Worry Same-Sex Marriage Ruling Could Impact Other Voter-Approved Measures

June 26, 2013
Some conservatives worry that Wednesday's Supreme Court ruling could put TABOR at risk

Some conservatives worry that Wednesday’s Supreme Court ruling could put TABOR at risk

DENVER – The Supreme Court’s ruling in a same-sex marriage case could potentially impact a wide range of other voter-approved measures in other states that have nothing to do with gay rights, say critics.

In one of two landmark decisions Wednesday, the court declined to overrule a lower court decision to strike down a California ban on same-sex marriage, known as Prop. 8.

The State of California had declined to defend the law before the Supreme Court.  Instead, a private group came forward to defend the voter-approved measure.  That is significant because in their 5-4 ruling, the court determined that the private group did not have legal standing to defend the California ban.

“Petitioners have no role—special or otherwise—in its enforcement,” read the ruling.  “They therefore have no ‘personal stake’ in defending its enforcement that is distinguishable from the general interest of every California citizen.”

“We have no authority to decide this case on the merits,” Chief Justice John Roberts wrote for the court majority.

And that has some asking whether the ruling creates a loophole for state officials to undermine any citizen-initiated measure they oppose by simply refusing to defend it in court.

“[T]he court’s decision opens the door for state officials to ignore laws enacted via ballot initiative, since the voters who passed them now have no standing to defend the law in federal court,” wrote Sean Davis for Red State on Wednesday.

The question is particularly important in Colorado, where voters have approved constitutional limits on the ability of the government to levy taxes and collect revenue without voter approval.

Those citizen-approved restrictions, known as the Taxpayer Bill of Rights or “TABOR”, have already been challenged by critics of the limits, who complain that TABOR’s unconstitutionally restricts the ability of elected officials to raise taxes and grow state spending.

As the 2014 election approaches in Colorado – and with it the possibility of re-election for Democratic Governor John Hickenlooper and the potential replacement of term-limited GOP Attorney General John Suthers with a Democrat – some conservatives are concerned that liberals may try to re-create a Prop. 8-style scenario – killing TABOR by simply refusing to defend it.

“The implications for Colorado’s TABOR case, and next year’s elections to succeed [John] Suthers as [Colorado] Attorney General, are profound,” said commentator Joshua Sharf.  “While any or all of the Republican candidates can be expected to defend TABOR vigorously, the election of a Democrat would open the possibility that the Colorado Department of Law might decline to defend TABOR in federal court.”

Cynthia Coffman, a Republican candidate vying to succeed Suthers, said the impact of the ruling on voter-approved measures is something that voters should keep in mind when they choose a new Attorney General next year.

“The Colorado Attorney General takes an oath of office to defend the Colorado Constitution in its entirety, not according to her or his own personal opinion or feelings,” Coffman told The Observer.  “It is very important that the voters ask and expect this of all candidates for the office in 2014.”

“TABOR is one of many instances in which an Attorney General’s failure to defend state law could result in a similar outcome,” Coffman added.

But others, like attorney and Senate District 22 candidate Mario Nicolais, aren’t so sure. Nicolais is running for the Republican nomination to take on Democratic State Senator Andy Kerr, who is the lead plaintiff in a lawsuit seeking to overturn TABOR.

“Certainly it makes defense of a law much more difficult if the enforcement arm doesn’t defend it, but it does not absolutely doom the law,” said Nicolais.  “One of the differences between Prop. 8 standing and TABOR is that every citizen has a right to vote on TABOR initiatives and many are taxpayers and consequently can overcome the standing issue.”

“I believe the issue with Prop 8 standing was that the litigants were not directly affected,” concluded Nicolais.

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