Prop 8 wasn't constitutionally protected, as a matter of fact it was overturned as unconstitutional and the decision allowed to remain in effect.
The fact that this doesn't bother more people is the most troubling part. After Prop 8 passed, narrowly but decisively, they pushed it into district court where a gay judge decided it was unconstitutional, in part, based on how it made the plaintiffs feel. This dude is not only gay, but in a long-term relationship who lives in San Francisco. He got dinged three times on procedural grounds during the case. After he struck it down, he stepped down from the bench, and then actively colluded with the plaintiffs when the case went to the Supreme Court....and they let his ruling stand because they didn't have standing to appeal since CA refused to defend the law.
I mean, for something that's supposed to be inevitable, there sure is a lot of bullshit isn't there? Why beat us over the heads with what the polls say and how "young people" feel about gay marriage when it's plainly clear that when gay marriage loses, the system will just legalize it anyway?
#1 "Narrowly but decisively" is kind of an oxymoron, kind of like "jumbo shrimp". The fact is that a mere 2.5% change in the vote would have changed the outcome 5 years ago. The fact is that polling right before the election showed it was a toss-up when you factor the "fors", the "against", and the "undecided" in terms of the margin of error (which IIRC was about 4%).
So...what's your point? Either way, it passed, and not by some 1-2% margin that people could just blame on voter turnout. Most polls showed Prop 8 losing, some showing it would lose by a landslide. Clearly that didn't happen.
Times have changes and polling now shows that Prop 8 would be defeated today as social views have continued to shift has they had between Prop 22 (California anti-Same Sex Civil Marriage law that passed in 2000 with a 23% margin of victory). At the rate opinions shifted between 2000 to 2008 and with the continued shift Prop 8 would have failed on a ballot in 2012 and this time polling is solidly against as the results remain the same even if all the "undecided" were to brake into the pro-ban crowd.
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How convenient is it that you don't have to put one ounce of faith in that? The gay marriage lobby didn't wait around a few years to bring the issue back to the ballot; they went to court to have it simply declared the law. Flogging the polls just keeps the conversation going and it gives supporters ammunition to use against opponents because they're "losing", but really most supporters couldn't give a shit about gay marriage polls if they see a way to just legalize it.
Though, I will say, I don't think the trend is as clear as you make it out to be. I think constitutional amendments will always be more contentious than statutes, since they're seen as being moreso permanent. The No on 8 side had more support and funding, so they loomed larger than the pro-SSM sentiment would.
#2 The Judges sexual orientation has nothing to do with it. I followed the case (via the media to the greatest extent possible), read most of the transcripts when they came available and read the decision, what Judge Walker did was allow the opponents and proponents of Prop 8 to present their case in open court and on the record. The proponents presented their case and it was very weak, Olson and and Boies then presented counter arguments. Judge Walker then wrote a decision that took each of the proponents attempts to justify discrimination and shredded them with logic and precedent.
Of course -- he ruled in a way you agreed with, so there's no question he was being fair, right? I don't think the defendants had a chance in hell of getting a fair trial or having their argument fairly considered, in part, because Walker wasn't going to deny himself and his partner their alleged right to marry voted away by the citizens of CA. To be honest, there's a certain unfairness in making people have to explain and justify their vote to a judge that doesn't really seem right, anyway. People don't have to have a Good Enough reason to vote a particular way, and trying to move the goal post to make this about something more profound than gay people's feeling being hurt because they can't legally wed, is such an obvious ploy. We have three co-equal branches of government for a reason. The judiciary isn't there for people to run overtime because they didn't get their way legislatively.
Are you saying a Judge should be removed from a case about sexual orientation because they have a sexual orientation? (In other words no judge [heterosexual or homosexual] could hear a case, a judge would have to somehow prove they were "asexual"?)
Should minority judges be removed from cases that involve minorities?
Should female judges be removed from cases involving women?
Should religious judges be removed from cases involving religion?
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Oh please. If the judge is manifestly implicated in the outcome of his own ruling, he should recuse himself. It's not this superficial thing of identifying with one party of a case being grounds for recusal. Walker being gay in and of itself isn't a problem. His being gay, a citizen of CA, and in a relationship similarly situated to that of the plaintiffs, when that's the entire point of the case, created a clear conflict of interest, but the people who would normally be smart enough to catch that were too busy
cheering him on to say anything about it.
#3 "He got dinged three times on procedural grounds during the case."
I remember two reasons is pre-trial decisions were overturned, maybe you could remind us of the third?
He tried to circumvent the rules around recording the trial; it wound up going to the SCOTUS. He didn't want to allow the defendants to appeal or stay his ruling while they appealed, but they obviously were able to do both.
#4 IMHO it was shameful that the State did not defend the law. Prop 8 was passed and amended California Constitution. The California Supreme Court had ruled that Prop 8 was valid, the Governor and Attorney General SHOULD have defended the law in court. If they choose not to support the law personally is irrelevant, they should have either resigned to let the next person in line defend it or appointed a State endorsed counsel to defend it - one that would have had standing.
So you can understand how the law being struck down on a matter of standing could be, at the very least, seen as complete bullshit, yeah?
Of course given the DOMA decision where the SCOTUS ruled federal law (DOMA, Section 3) was discriminatory and therefore unconstitutional, it might be a good thing. If the defenders of Prop 8 had had "standing" in federal court the case would have not been dismissed for that reason. The SCOTUS then would have had to rule on the merits of the case and since the DOMA decision acknowledged the federal law was discriminatory with no compelling interest, the likelihood is that they would have ruled the Prop 8 was discriminatory with no compelling interest. Such a decision would then have had national impact. But by side-stepping the core question and ruling on "standing" only, the SCOTUS allowed Prop 8 to be overturned but in a manner that applied only to California - limiting the scope of the impact. For now.
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I don't see what would've been wrong with saying "there is no right to same-sex marriage". It wouldn't stop any state that felt compelled to legalize it from doing so. The only thing it would've done is shored up the legal back-stop where activist judges and lawyers go to court to have it declared the law.
