‘Politically, this seems to me the perfect decision. It would have been dreadful if voters were retroactively told their valid vote was somehow null and void – it would have felt like a bait and switch and provoked a horrible backlash.

‘It would have been equally dreadful if those couples lawfully wed were subsequently forced into divorce by the court. And these married couples and their families and children will now become the focus of the debate in California, as they should be. They are the evidence that we are right: that extending the blessings and responsibilities of full family life to gay men and lesbians is a good and conservative and integrating thing. We need now to put these families forward as our core argument. Their lives are our best case. Like mixed-race married couples in another era, they will show that there is nothing to fear here and much to celebrate.’

– Andrew Sullivan, May 26, 2009

A 14-word section in the California constitution has triggered a great deal of grief on both sides of the gay marriage issue. Undoubtedly, few will find anything more than a modicum of self-satisfaction in the 185-page opinion released today by the California Supreme Court regarding Prop 8.

Indeed, many are planning to take their emotional frustrations to the streets today in more than 100 marches and rallies, including here in Salt Lake City. Immediate reaction might have a cathartic effect for now but it hardly offers any value for the longer term campaign on this issue. Already, groups are collecting signatures to put an initiative on the California ballot in 2010. All of this without pausing for the moment and contemplating the impact of the decision. (See below for highlights of the decision.)

How about something radically different? Exercise being politically astute and smart, read through the opinion, assess how public opinion has moved substantially toward marriage equality, review the experiences of Iowa and the cascading movement in New England, and lay out the positioning framework for the next round of campaign messages.

But, no, gay rights activists are pissed — and rightfully so, in some significant respects — but they must reconsider the shrill alacrity of their protest voices. Otherwise, they risk losing another round of high-stakes political gambling. And, then, the prospect of full marriage equality coming to California and another states might be delayed for several more election cycles.

I also liked the measured tone of San Francisco Mayor Gavin Newsom’s statement: ‘It is up to every single one of us who supports marriage equality to reach out to those who still disagree with our position and have a personal conversation about why it is so important to treat every Californian equally.’

And, for those considering immediate protests, I offer Chris Geidner’s comments: ‘[We] have spent the past decade decrying those who demean the legitimacy of court decisions by attacking them. It would turn that principled stand on its head to say that this court, which previously held that marriage equality was guaranteed by the California Constitution, is somehow responsible in today’s decision for ‘denying an entire group of people our civil rights.’ … and most simply, this is not the righteous anger exhibited this past fall.’

Last year, the state supreme court voted 4-3 to legalize gay marriage. Today, the court voted 6-1 to uphold Prop 8 AND voted 7-0 to keep intact the 18,000 same-sex marriages that had been performed between June and early November of last year. ‘Three of the judges who voted for that decision went the other direction today,’ Ed Morrissey notes. ‘They had little choice. California allows constitutional amendments by referenda, and the backers of Proposition 8 followed the law scrupulously in getting it on the ballot.’

What the court dealt with primarily were the fundamental questions of the constitutional right to bring an initiative to the ballot box and to whether or not Prop 8 constituted a significant constitutional revision or a constitutional amendment.

More importantly, the ruling today does not settle for any sense of finality what will be California’s marriage laws. As law professor Bill Aralza notes, ‘[I]ronically enough, in the course of settling the law we may be back to the same question that’s been on the agenda for several years now: how important is the word “marriage” to the true equality of same-sex couples with their opposite-sex counterparts.’

In other words, the door may be open to major legal challenges under federal equal protection requirements. That is, if as the court said today, that domestic partnerships get all of the rights afforded to those couples who fall under the designation of marriage, then the characterization of that distinction may be at issue. Just how much does the term “marriage” really matter.

Key points to note:

Court says Prop 8 a constitutional amendment, not revision.

This is a significant aspect of the ruling. The court laid out a compelling analysis of the distinction, noting that constitutional revisions, in California as in many other states, could only be proposed by means of a constitutional convention. This is where the dichotomy of amendment and revision operates differently from the U.S. Constitution. At the federal level, constitutional amendments originate from the national legislature and are then must be ratified by a super-majority of states at a constitutional convention. Thus, only 27 amendments have been made to the U.S. Constitution. Meanwhile, there have been 500 amendments to the California constitution since 1849.

The court wrote:

‘Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, and after comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision.

‘As a quantitative matter, petitioners [those seeking to overturn Prop 8] concede that Proposition 8 — which adds but a single, simple section to the Constitution — does not constitute a revision.

‘As a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment.’

Prop 8′s constitutionality

‘The initiative measure does not declare the state of the law as it existed under the California Constitution at the time of the Marriage Cases, but rather establishes a new substantive state constitutional rule that took effect upon the voters’ approval of Proposition 8. Because the California Constitution explicitly recognizes the right of the people to amend their state Constitution through the initiative process, the people, in exercising that authority, have not in any way impermissibly usurped a power allocated by the Constitution exclusively to the judiciary or some other entity or branch of government.’

Court keeps intact key aspect of May 15, 2008 ruling legalizing same-sex marriage by upholding strongest constitutional protections against same-sex discrimination

‘Accordingly, although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated “marriage,” in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, “the core set of basic substantive legal rights and attributes traditionally associated with marriage,” including, “most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.” (Marriage Cases, supra, 43 Cal.4th 757, 781.) Like opposite-sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right.’

Distinction of terminology on marriage

‘Although the majority opinion in the Marriage Cases generally referred to this state constitutional right as the “constitutional right to marry,” at the same time that opinion explained that this constitutional right is distinct from the right to have one’s family relationship designated by the term “marriage.” (Id. at pp. 812, 830-831.)

‘Because in common speech the term “right to marry” is most often used and understood to refer to an individual’s right to enter into the official relationship designated “marriage,” and in order to minimize potential confusion in the future, instead of referring to this aspect of the state constitutional rights of privacy and due process as “the constitutional right to marry,” hereafter in this opinion we shall refer to this constitutional right by the more general descriptive terminology used in the majority opinion in the Marriage Cases — namely, the constitutional right to establish, with the person of one’s choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one’s choice).’