A ballot initiative was proposed in Oklahoma to amend the state constitution to define “person” as “any human being from the beginning of the biological development of that human being to natural death.” The proposal was challenged in state court, and the Supreme Court of Oklahoma blocked the proposed initiative from going forward to the voters on the ballot. In doing so, the state supreme court misused the Supreme Court’s decision in Planned Parenthood v. Casey to deprive the people of Oklahoma of a power reserved them by the Tenth Amendment. The proponents of the initiative filed a petition for writ of certiorari in the United States Supreme Court.
CLDEF filed an amicus curiae brief in support of the petition for a writ of certiorari, arguing that the petition should be granted because the petition presents a question of momentous significance to the powers reserved by the Tenth Amendment to the people. The definition of “person” in the proposed amendment is not repugnant to any provision in the U.S. Constitution, and therefore, the initiative is not outside the powers of the people reserved to them by the Tenth Amendment.
CLDEF’s amicus curiae brief also argued that the petition for a writ of certiorari should be granted because it presents an important question concerning the exercise of judicial review that cannot be settled except by the U.S. Supreme Court. The decision of the court below was based squarely upon the mistaken doctrine of judicial supremacy — that the U.S. Supreme Court’s Casey decision is the supreme law of the land, and thus, legally binding upon the people of Oklahoma in the exercise of their inherent power to amend the State constitution. The U.S. Supreme Court, however, is not the final arbiter of the U.S. Constitution in the way that the Oklahoma court below ruled. Rather, its decisions bind only the parties before it. The people who constitute the government of Oklahoma remain sovereign, possessing the inalienable right to propose, ratify, and amend the State constitution as they see fit, so long as the changes are not repugnant to the U.S. Constitution, as it was originally written.
On October 29, 2012, the U.S. Supreme Court denied the petition for certiorari.
CLDEF Amicus Brief in Support of Petition for Certiorari (August 31, 2012)