>>
>>If the law in question does not violate the Constitution, as stated above, then the courts should act to uphold the will of the people. Equal protection under the law is a right established by the 14th amendment. Discriminatory laws do not pass muster.
>>
>
>Is it accurate to say a ban on gay marriage is either unconsitutional or is not discriminatory?

This is the issue the courts are struggling with. Is it discriminatory to prevent a couple from using a word. The legal rights of same-sex couples are already protected in California and we're dealing with a state issue, not federal.

The problem I see in the case is that the majority decision has created new law where there previously was none. It's one thing to strike down the new language voted in by the proposition's passage, but it's quite another to create a new right where one did not exists before, which is what this decision has done. Justice Baxter's opinion addresses this :

"I cannot join this exercise in legal jujitsu, by which the Legislature’s own
weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power. The majority purports to apply certain fundamental provisions of the state Constitution, but it runs afoul of another just as fundamental — article III, section 3, the separation of powers clause. This clause declares that “[t]he powers of state government are legislative, executive, and judicial,” and that “[p]ersons charged with the exercise of one power may not exercise either of the
others” except as the Constitution itself specifically provides. (Italics added.)

History confirms the importance of the judiciary’s constitutional role as a
check against majoritarian abuse. Still, courts must use caution when exercising the potentially transformative authority to articulate constitutional rights. Otherwise, judges with limited accountability risk infringing upon our society’s most basic shared premise — the People’s general right, directly or through their chosen legislators, to decide fundamental issues of public policy for themselves.

Judicial restraint is particularly appropriate where, as here, the claimed
constitutional entitlement is of recent conception and challenges the most
fundamental assumption about a basic social institution.

The majority has violated these principles. It simply does not have the right
to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice."

We're dealing with precedent setting stuff here. Not simply with the single issue of same-sex marriage, but with the role of the judiciary. Law written from the bench is by no means unheard of in our history but it is dangerous stuff, especially considering judges are not accountable to the electorate. 4 people in California have effectively written written new law which goes against the overwhelming will of the people. Regardless the issue, that's dangerous.