Yesterday the California Supreme Court unanimously held that the official proponents of California's Proposition 8, which amended the state constitution to forbid gay marriage, had the legal standing to defend the measure in court. Since the state government has refused to offer a legal defense, this clears the way for the 9th Circuit Court of Appeals (and maybe the Supreme Court after that) to hear the challenge to federal Judge Vaughn Walker's 2010 decision striking the ban down filed by Prop. 8's proponents.
Should gay marriage supporters be upset about this? After all, had the California Supreme Court ruled the other way, Judge Walker's ruling would stand (since the state isn't pursuing the case). Writing at The Huffington Post, Western State University law professor David Groshoff basically says, yes, gay marriage advocates should be upset at the "foolish" ruling, which he claims handed an unnecessary victory to "those opposed to queer couples having the right to marry in California." In fact, he writes,
should enough advocates of queer couples' marriage rights be appalled by today's decision, perhaps they should take the (albeit frightening) page from the anti-queer advocates in Iowa and attempt to recall these judges from the bench by a popular vote.
Meanwhile, at the progressive magazine Mother Jones, Kevin Drum wisely reminds gay marriage advocates to think about the big picture:
It feels more than usually loathsome to take sides with the Prop 8 folks here, but this is a good decision. It would be a travesty if a successful ballot measure could be overturned by a single district court judge and then, by virtue of a procedural formality, stay overturned simply because state officials declined to defend one of their own laws. If the tables were turned, I'd be blisteringly outraged by shenanigans like this.
Like it or not, Prop 8 was passed legally and properly. If it's overturned, it should be overturned on its merits — as Walker's decision did — not thanks to a legal technicality. I hope they lose, but Prop 8's backers deserve their day in court.