The same-sex legal mess in CA

Prof. Bainbridge and Eugene Volokh separately discuss the legal intricacies of the Prop. 8 victory in California, and whether or not it's likely to be overturned by the state Supreme Court. Apparently there's an argument -- a strained on, but an argument -- to be made based on the definition of the proposition, and whether or not the proper procedure was followed.

So maybe the courts can overturn this on a technicality, I dunno. But what greater example of the judicial usurpation of politics could you ask for?

Also on the Volokh blog is a longish reflection on Prop 8 by Dale Carpenter, who campaigned against it. Excerpt:

But the narrow margin of yesterday's loss masks some hard facts for the gay-marriage movement. Counting the losses for gay marriage in Arizona and Florida yesterday, we are now 0-30 in ballot fights. In California, we lost under circumstances that were as favorable to our side as they are likely to be for some time. We lost in deep blue territory on a blue night, when Obama carried the state by an astonishing 61% (running ahead of the opposition to Prop 8 by more than 13%). We lost despite being on the "no" side in a ballot fight, with the built-in advantage that gives you among those who vote "no" on everything out of understandable proposition fatigue. We lost despite the state attorney general changing the ballot title to reflect that it "eliminates rights," something most Americans don't like to do no matter the subject.

All of this suggests to me that actual support for gay marriage in California is something less than the 48% vote we got. My best guess is that actual electoral support for gay marriage in California is somewhere in the low 40s, when you factor out ballot fatigue, the blue tide, and the favorable ballot title - all of which you would have to presume in trying to reverse Prop 8 in a future initiative requiring an actual "yes" to gay marriage. And, of course, to reverse Prop 8 we'll have to raise lots of money and put together a petition drive just to get to the ballot. My estimate is that last night's loss - barring federal or state judicial intervention to undo Prop 8, which I regard as unlikely - means there will be no gay marriage in California for at least a decade.

Carpenter goes on to say that the deeper problem for his side is that many, many Americans, even in blue states like California, simply don't feel comfortable with homosexuality, for whatever reason. Here's Carpenter:

The smartest leaders of the gay-marriage movement know all of this. That's why gays were invisible in the No on 8 campaign. The literature I handed out talked in generalities about "discrimination" and about how it was "wrong" and "unfair" to take away marriage from some unnamed group of people. I scoured the literature and found no reference to "gays."

I agree with him when he goes on to say that that's all going to change one of these days. I don't know why it's so difficult for them to see, though, that stuff like this below only delays that day (btw, I deleted a comment from this site earlier, in which a gay man threatened to kill me for my bigotry, and said that the marvelous day is coming when churches will lose their tax exempt status and Christians will be persecuted):