On June 26, 2013, the Supreme Court decided Hollingsworth v. Perry, rejecting an appeal by supporters of California's Proposition 8 on standing grounds. The result of the decision will impede citizens' abilities to bring such a challenge where they have not shown injury and where the state has refused to defend the law. The decision could make it easier for state officials to abolish measures passed through the citizen initiative process.
Lance Lange of Faegre Baker Daniels spoke with Law360 about what the decision might mean for ballot initiatives and for future courts. "The practical effect of this decision is that when a law happens to come up through the referendum process — and it's likely to be a controversial political issue like gay marriage — how do we properly get this issue in front of the courts to determine whether or not its constitutional?" Lange said. "I'm not sure that down the road, the Supreme Court isn't going to take a look at this again and wonder if it shouldn't provide for some way for a ballot initiative law to get before the court."