“Hard cases make bad law” is a long-standing expression for the concept that if appellate courts (which indeed do make law, regardless of the myth that the courts merely “interpret” law) have to struggle to reach a just result in a particular case, and are forced to twist and turn existing legal precedent to do so, it may get the just result in the case at hand, but the result will often be something that when applied in future cases will force unjust results. In other words, the result is “bad law.”
The primary attack on Proposition 8 would, if successful under the main theory that the opponents of Prop 8 are advancing, is an example of something which would create bad law. The argument that Proposition 8 was a constitutional revision, rather than an amendment, and was therefore beyond the power of the people to enact by initiative is one which, if accepted, severely limits the initiative process and the power of the people to bypass the Legislature and enact law directly.
The fact that Proposition 8 passed is a condemnation of the homophobia and hyper-religious outlook that many Californians have, and is a criticism of the overconfidence to which those responsible for the No-on-8 campaign because of poll results up until a few weeks before the election predicting that Prop 8 would be readily defeated.
However, the fact that Prop 8 passed does not mean that the initiative process should be undermined. The failure of progressive forces to succeed in the campaign against Prop 8 and to succeed in a number of other campaigns against right-wing initiatives, as well as failure to succeed in qualifying and passing progressive initiatives is a criticism of the forces leading progressive politics in this state, not a criticism of the right of the people to bypass the Legislature.
There are alternative approaches to attacking Prop 8 which do not undermine the right of initiative. One is the argument that it violates the Equal Protection Clause of the 14th Amendment. Surely it does, but the weakness of this argument is that it raises an issue of Federal constitutional law, and would thus be subject to review by the U.S. Supreme Court.
Another approach is that taken by Jerry Brown. In spite of the argument which at first blush seems absurd — that a constitutional amendment violates the constitution — the argument that there is a higher concept of personal liberty and individual freedom which cannot be removed from the Constitution has the advantage of defending personal rights while not seriously weakening the right of initiative.
But regardless of whether that argument can succeed, the chore for progressive forces defending equal protection and personal freedom is to do a better job in agitation and education in the public at large. We should not support the bad law of substantially undermining the power of initiative. We need to be able to use that power. We only need to learn how to use it successfully.
— Bob Evans