I am a biased. I am a criminal defense attorney who has watched in horror as the California Supreme Court has affirmed 99% of criminal cases it reviews each year for the past 20 years, making it tougher and tougher to defend accused citizens. I am also pro gay marriage, and opposed Prop. 8 (both of them, as you will see below), and raised funds against the anti-gay marriage initiative.
To understand the link between the two, you need an off-the-cuff California legal/political history.
Although the United States Supreme Court had found California's Death Penalty to be constitutional under the U.S. Constitution, (McGautha v. California), in 1972, the California Supreme Court held that California's Death Penalty statute was unconstitutional on state constitutional grounds (People v Anderson). The opinion written by one of Gov. Ronald Reagan's appointees found that the Death Penalty was cruel and unusual under the California Constitution.
Shortly thereafter, the California voters passed Prop 17 which essentially overruled Anderson by saying that the Death Penalty was not cruel and unusual under the California constitution. In 1979, the California Supreme Court held that overturning the Supreme Court's Anderson decision by Prop 17 was not a revision.
The Death Penalty, however, faced other problems. Governor Jerry Brown's appointees soon gained control of the California Supreme Court and started overturning almost every Death Penalty. Every Death Penalty case is automatically appealed to the state supreme court, so most of the California Supreme Court's criminal case law is developed in Death cases.
The Death Penalty initiative was part of a get tough on criminals movement in California (and across the nation). In 1982, the voters passed the "other Prop 8" which added the "truth in evidence" provision to the California Constitution, article I, sec. 28(d), that essentially said that courts can't exclude evidence under the California constitution unless the federal constitution requires its exclusion. The California Supreme Court (with 2 of Jerry Brown's liberal appointees dissenting) found that the first Prop 8 was not a revision (In re Lance W)
By 1986, the anti-death justices controlled the court, and no prisoner had been executed despite over a dozen years of imposing death penalties. The people were outraged. This launched an unprecedented campaign to vote-out 3 of the justices of the Supreme Court. The move was backed by insurance companies (who did not like the liberal justices rulings in favor of broader insurance coverage) and by a rising force in California Politics -- the Prison Guards PAC.
In November 1986, Republican Governor Deukmejian won reelection in a landslide over LA Mayor Tom Bradley (yes the "Bradley effect" election). Further, in an unprecedented vote, the 3 most liberal justices of the Supreme Court were voted out of office. Deukmejian correctly viewed this as a mandate to appoint justices who would affirm the Death Penalty and affirm criminal convictions, and quickly appointed 3 very conservative justices to Court. The Supreme Court even went so far as to grant rehearing in a number of cases which had already been decided in favor of criminal defendants, because the rules permit rehearing for 90 days. Thus, many defendants who won in the Supreme Court, later had those victories snatched away.
The new Supreme Court has acted on its "mandate" to affirm criminal cases and death cases in particular for the past 20 years. (Gov Grey Davis was the only Democrat in that period and only got one appointment, Moreno, a moderate).
Further, the tough on crime mandate spread to the Legislature where longer and longer sentences were approved. This led to an enormous growth in prison population. From 1982 to 2000, California's prison population grew at a rate of 500%. California built 23 new prisons during this period. By contrast, California had only constructed 12 prisons between 1852 and 1964.
The growth in prisons, and prison populations has made the Prison Guard's PAC the most powerful PAC in California. Further, prison guards have united with crime victim groups to place more and more initiatives on the ballot that limit the rights of accused persons, and that make longer sentences. These forces learned that while legislative votes are apportioned based on voting age population, the conservatives tend to vote more reliably. Thus it is easier to get these measures passed by ballot initiative.
The California Supreme Court has approved all but one of these initiatives, based upon its perceived mandate to get tough on crime and affirm convictions.
Here is the rub for gay marriage. The Supreme Court's May decision held that marriage is a fundamental right. But many of the state constitutional rights protecting criminal defendants were also held to be fundamental rights, including the right no to be killed by the state.
To hold that Prop 8 was a revision instead of an amendment, the California Supreme Court would limit the people's rights to take away protections from criminal defendants. But the Court believes it has a mandate to affirm convictions, affirm the death penalty and take away criminal rights.
I just don't think the votes are there to hold that an initiative which undoes a civil right is a revision.
Of the four justices that voted for gay marriage in the first place, 2 are moderate liberals, and 2 are moderate conservatives. Both the moderate conservatives (including the Chief) are fairly dependable anti-crime votes.
In this case, the tough-on-crime mandate of California politics is going to make the Court tough on civil rights, and make the Court willing to uphold initiatives that limit rights.
I don't like any part of this, the willingness to take away criminal defendant's rights, or the apparent willingness to take away gay marriage rights, but I think they are linked in this case.