Despite it probably saving gay marriage, Andrew Sullivan blogs his contempt for the courts and litigation:

Both supporters and opponents have asked for a judicial ruling on whether the initiative can stand. My own view is that it should stand, and the court should decline to reverse it. We lost. They won in a fair fight. No whining. With one caveat. Those civil marriage licenses already issued should not be revoked. I find the retroactive voiding of marriage licenses at once legally suspect and humanly cruel.

If my own marriage license were suddenly deemed void, it would feel like a very nasty attack on my own family. It is one thing to decide that gay couples are barred from civil equality from now on, but to reach back and strip couples who married in good faith under the law is excessive.

My own view is that we can protest and have; we are also within our rights to boycott businesses who bankrolled the initiative, and to confront the Mormon church. But we lost a fair fight because of complacency, and dreadful leadership. Now: start the battle to reverse the initiative through the ballot box. This time: a different model of grassroots organizing, web-based fund-raising, and social networking advocacy. But first: a revolution at HRC and its clones.

Prop 8 raises a controversy that needs to be decided by the Court, and I believe the Court will decide the issue in favor of gay marriage. Some folks argue that judicial review is ineffective, because when courts decide in favor of gay marriage, a subsequent backlash of anti-gay marriage amendments results in other states. This argument is flawed, since these states, with their hostile responses in banning gay marriage, weren’t supporting gay marriage in the first place. Furthermore, it is important that rights be declared and remedies provided through the courts. From Richard Just via The Volokh Conspiracy:

Second, I think it’s important to point out that the gay rights movement has not worked exclusively through the courts. The reason it sometimes appears that the gay marriage movement has focused on the courts is because those are the only places it has actually had success. Thanks to courts, we have marriage equality today in two states (Massachusetts and Connecticut); without courts, we would have marriage equality in no states. Would the gay rights movement really be better off with no court-imposed gay marriage–and therefore no gay marriage at all?

You blame the 2003 Massachusetts decision for leading to gay-marriage bans in 30 states. I would put the numbers a bit differently. In states where courts have imposed gay marriage, we are now two for three in terms of making the ruling stick. (We lost in California. But in Massachusetts, where polls swung in favor of gay marriage within a year of the first same-sex marriage, we have effectively won. And likewise in Connecticut, where voters this week rejected calls by conservatives to hold a constitutional convention for the purpose of overturning the state supreme court’s ruling on marriage equality.) By contrast, in states where courts have not imposed gay marriage, we are zero for 47. And, in many of these states (New York, for instance), this has not been for a lack of effort on the part of gay activists and the politicians allied with them.

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