Here is a response to part of the issue (the denying of standing to the citizens) by the head of an effort in AZ to get government recognition of same sex marriage.
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Proposition 8, a California initiative to ban same-sex marriage that likely would not pass today, was introduced and passed five years ago because the authors of the initiative knew it was a step legislators would never take but that they thought (correctly at the time) that the voters would support. In fact, in a nutshell, this is exactly what the initiative process was meant to achieve. If citizens think the legislative process is broken on a particular issue (e.g. taxes, where legislators have entirely different incentives vis a vis raising taxes than do taxpayers), they can do an end-run. In a sense, this is exactly what we are doing in Arizona with our Equal Marriage initiative, though of course with the opposite desired end result from Prop 8. But just as in that case, we do not have high hopes of the current legislator passing such a Constitutional Amendment, so we are doing it through citizens initiative.
The problem in the Prop 8 case was that when the law was challenged in court, neither the governor nor the legislature was willing to defend it in court (remember, that it was passed over their opposition). Given the very nature of ballot propositions and the reasons for them discussed above, this is likely a common occurrence. But the Supreme Court refused to rule on the case because, as I understand their argument, only the administrative or legislative branch of the state government has standing to bring the appeal (ie defend the original law that was overturned by a local Federal court).
This is a really bad precedent. It means that any initiative passed by citizens that is opposed by the current state government is enormously vulnerable to attack in courts. If the government officials are the only ones who have standing, and they refuse to defend the law, then it will lose in court almost by summary judgement.
There has got to be some process where courts can grant citizens groups who filed and passed such initiatives standing to defend it in court. Certainly there could be some judicial process for this, almost like the process for certifying a class and its official representative in a class action suit. Without this, citizens initiatives are going to lose a lot of their power.
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