Don't get me wrong. I am for marriage equality, but the Proposition 8 ruling was wrong. It looks like a Pyrrhic victory for the cause of civil rights.
The discriminatory laws about gay marriage are wrong, prejudicial, and motivated by hate. But the legal precedent set by the ruling is dangerous. Supreme Court allowed a lower court ruling overturning the law to stand on the grounds that the plaintiffs (a sundry group of haters) did not have standing to challenge the law. This ruling (although consistent with prior case law) will provide further case law that will prevent people from seeking redress against the whims of politicians.
The California attorney general's office refused to defend the law. SCOTUS ruled that the plaintiffs had not proven that they were damaged, but the attorney general would not have been able to prove that it was damaged either. Of course one primary purpose of the attorney general's office is to defending the constitutionality of state law. But defending the law of the state should be a citizen's duty if he or she believes that law to be just. Of course, the freedom to bring suit that I am promoting would open many laws to be challenged, and that's a good thing. Bad laws SHOULD be challenged. However, this may be logistically difficult for the courts. To that end, courts should only hear these cases when a brief has been filed which presents a clear argument that requires non-obvious refutation. To put it more simply, these cases should proceed if an initial review is that the argument is most likely legally sound. If a party has been harmed, then that shows standing and the initial review should not be necessary.
The necessity to prove harm in order to challenge a law is scary. But why should it be? If a law is bad, surely it harms someone, correct? But what about laws enabling the government to spy on its own citizens? The ACLU and others have challenged these laws (such as FISA) on numerous occasions. Courts have thrown out many such challenges based on the lack of proof of harm. But whether or not there is material harm based on government spying, those laws violate the forth amendment. They are unlawful searches.
SCOTUS should have struck down proposition 8. But the plaintiff's had standing based on being California citizens. They should have recognized the standing and then struck down the law based on section 1 of the 14th amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Marriage equality is a fundamental civil right. Period. Not a political football to be kicked around by the states.
