Dahlia Lithwick, writing in Slate describes the weakness of the arguments supporting Prop8, and the floppy dissenting opinion by Judge Smith
The evidence, the data, and the experts overwhelming agree that gay marriage does not harm children. And that leaves opponents of gay marriage to argue a tautology: Gay marriage is wrong because it’s wrong.....
That’s the best case that can be made against gay marriage. An appeals court dissent that rests on the premise that states needn’t act rationally, or offer evidence of rationality, or even be rational in creating classifications, so long as someone publishes a study and someone else believes it. That’s the best they’ve got, it seems.
That is not legal argument or empirical evidence. It is the death rattle of a movement that has no legal argument or empirical evidence. Nobody disputes the fact that Americans opposed to gay marriage believe passionately in their ideas and arguments. But that doesn’t necessarily mean those arguments should win in a court. The best thing that could have happened in the Prop 8 case just happened. The dissent has no clothes.