By Jeremy B. White
Published: Friday, Jun. 28, 2013 – 12:00 am
Last Modified: Friday, Jun. 28, 2013 – 8:34 am

Who can defend an orphaned ballot initiative?

The question gained resonance Wednesday after the U.S. Supreme Court ruled that proponents of Proposition 8, California’s voter-approved ban on same-sex marriage, had no standing to pursue their appeal once California officials declined to defend the embattled law.

The decision spurred questions about the legal recourse available to supporters of ballot measures state officials decide to abandon.

It especially troubles critics who worry politicians could quietly condemn voter-approved measures by refusing to defend them in federal court.

“It leaves the backers of the initiative and the voters subject to the whims of the elected officials,” said Harold Johnson, an attorney with the Pacific Legal Foundation, “and that undermines the whole purpose of the initiative system, which is to empower people to go around the politicians and make the laws themselves.”

The Supreme Court’s ruling preserved a 2010 decision by U.S. District Judge Vaughn Walker striking down Proposition 8. It also vindicated the decision by then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown not to defend Proposition 8 in court.

In their absence, the initiative’s sponsors stepped in to challenge Walker’s decision.

The case made its way to the U.S. Supreme Court. There, rather than weigh the constitutional merits of Proposition 8, the justices ruled that proponents could not shoulder California’s forfeited role as the measure’s advocate.

Key to the court’s interpretation is the legal doctrine that, to have standing, parties in a case must have suffered some tangible consequences – “injury,” in legal parlance.

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