The proposition eight situation in California illustrates the dangers inherent in judicial creation of pretend "rights." I support the legalization of gay marriage. The U.S. has been moving steadily in a direction that is more tolerant of homosexuals, and we are slowly getting to the point where gays have all the same rights as heterosexuals. But it is a slow process. Gay rights activists, and the left in general. are unwilling to wait on the Democratic process to change the laws, let alone the constitutions of states, or of the nation. Instead they prefer to use the judiciary in order to find imaginary rights to gay marriage, thereby legalizing it against the wishes of the majority.
Judicial activism designed to create "rights" has a number of problems. Most importantly, these rights are imaginary. They are clearly & obviously not found in either the U.S. constitution, or state constitutions, and are supported by nothing other than the opinion of a few judges. Whether or not they should be rights is irrelevant, since they do not have the force either of majority opinion as with a law, or of the supermajority necessary for a constitutional right. Using this tactic risks antagonizing the majority, creating a weak right, and causing a backlash that can result in the majority removing that right by legislative action. This is what happened in California. Even such a liberal state is not yet ready to legalize gay marriage. The country has moved far, but not far enough. Look at Barack Obama. He is arguably one of the most liberal Democrats ever elected president. But even he is on record opposing gay marriage.
Gay rights activists argue that it isn't fair that gays should have to wait to achieve the same rights as heterosexuals. They want their rights now. I agree, it isn't fair that they have to wait. But life isn't fair. The U.S. has a legal process involved in changing the laws, and amending constitutions. If you use the courts to go outside this process, against the wishes of the majority, you not only undermine our Democratic institutions, you create antagonism toward your cause, or even open hostility. And your newly created "right" is a weak reed supported by nothing. It was put in place against the wishes of the public, and exists only as long as it is tolerated by the majority.