Those opposing Proposition 8 had a strange argument to make indeed: “The state constitution is unconstitutional.” Chief Justice Ronald George, writing for the majority, laid out the case plainly: "In a sense, petitioners' and the Attorney General's complaint [opposing Proposition 8] is that it is just too easy to amend the California Constitution through the initiative process, but it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it." 

What a refreshing statement regarding the proper role of judges in this day when far too many are willing to engage in strained legal interpretations or to outright ignore the law if the outcome is not to their liking.  Such was the case last May when the same Court ruled in a 4-3 decision that the California Constitution required the state to recognize same-sex marriages. The reasoning employed was: 1) The ability to marry is a fundamental right. 2) Some people would prefer to marry someone of the same sex. 3) Therefore same sex couples have the right to marry. The only problem with the reasoning was that the fundamental right to marry has always been defined and understood to be between a man and a woman. In fact in 2000, the people of California passed a ballot initiative specifically defining marriage as between a man and a woman, so there would be no confusion. When the CA Supreme Court struck down this measure last May, those in favor of traditional marriage had already begun the more difficult task of passing a constitutional amendment.  They succeeded in November, and the Court has now rightly recognized their right to do so. 
  

However, now comes the next challenge to Proposition 8 and all state measures defining marriage as between a man and a woman; this time under the United States Constitution in federal court.  It's almost like the end of the second sequel to the Lord of the Rings Trilogy when Gandalf announces that the Battle of Helm's Deep has been won but the battle for Middle Earth is about to begin.  High powered opposing counsels in Bush v. Gore (2000)--Ted Olson and David Boies--have joined forces and taken up the cause of striking down Proposition 8.  If their case goes to United States Supreme Court, which is likely will, and they succeed, it will have the effect of mandating same-sex marriage nationwide.  Their complaint to federal court states, “It is impossible to reconcile the restrictions that Prop. 8 imposes on the right of gay men and lesbians to marry with the U.S. Supreme Court’s conclusion that the Fourteenth Amendment protects the right of all citizens to make personal decisions about marriage without unwarranted state intrusion.” 

The United States Supreme Court has not actually said that or otherwise all state laws defining marriage as it's always been understood would already be unconstitutional. In Lawrence v. Texas (2003), the Court did strike down a state sodomy law, finding it to be an unconstitutional intrusion into peoples' sexual lives.  Lawrence actually overruled another Supreme Court decision issued only seventeen years before in Bowers v. Hardwick (1986) that stated the Constitution was silent on the matter so states were free to pass or repeal laws addressing the practice.  Though all states once had anti-sodomy laws even by the time of Bowers in 1986 the majority did not and by the time of Lawrence less than ten did. 

Justice Antonin Scalia pointed in his dissent in Lawrence that state governments pass laws addressing peoples' private sexual lives all the time including anti-polygamy laws, incest laws, child molestation laws, laws against prostitution, to name some.  To say people have a newly discovered, fundamental right to make their own private sexual choices without state intrusion would negate all these laws.  He further predicted that state courts would take this new found Constitutional right to sexual identity and use it justify striking down state laws that define marriage as only being between a man and a woman.  Four months later, the state of Massachusetts did just that.  Others followed including Iowa and California (hence the Proposition 8 amendment in response).       

Six years after Lawrence the pieces are now in place.  Will the United States Supreme Court pull another Dred Scott (which struck down laws throughout the United States restricting the growth of slavery) and impose its will on all the United States regarding same-sex marriage or will government of, by, and for the people be the touchstone of the American political experience?  We will all have to wait and see.