The problem with your argument is that 4 out of 7 Supreme court judges disagree with you. They insist it is a constitutional issue. The fact that you side with the 3 out of 7 that agree with you is ok, but doesn't change the fact that you are outvoted by the constitutional experts on the supreme court. You also said that they "Prop 22 could've been overturned as unconstitutional". That seems to be what they tried to do (and wrote in the majority opinion that they did). You say they didn't, so I don't understand how you say they could have if you won't accept their word that they did.

Besides, overturning proposition 22 only put things back the way they were before the proposition. In essense they didn't create new law, they only reconfirmed old law.

Frankly though, I agree with the majority that putting the phrase between a man and a woman into the law does make it discriminatory. Suppose they had used a phrase like between persons who are gainfully employed or between persons the same age. Would that then contravene the constitution? If the constitution guarantees equality for all people, then how can putting in a restriction that favours only certain people not be unconstitutional?

I guess I disagree that they created new law. I'm with the majority decision. The proposition contravened the constitution.

Of course, now California has threatened to amend the constitution itself to disallow same-sex marriage. That will be a much tougher nut for the court to crack. It never ceases to amaze me just how much time and energy some people will spend on trying to make other people into second class citizens. It's the old "I will raise myself up by lowering others".

>Prop 22 did 2 things:
>1) It modified California Family Code section 300 from "a personal relation arising out of a civil context, to which consent of the parties making that contract is necessary" to "a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary" - italics mine
>2) It modified California Family Code section 308 from "A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state" to "Only marriage between a man and a woman is valid or recognized in California."
>
>http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=00001-01000&file=300-310
>
>Overturning Prop 22 would've re-introduced the ambiguity into the California Family Code. The issue could've then been legislated properly. The decision goes further than simply overturning Prop 22 it has created a new right in the law.
>
>The guarantee of "personal privacy and autonomy" was never at issue as California already has laws on the books to legally protect all domestic partnerships, regardless of sexual orientation. Notice the word "right" in the justice's opinion you cited. Please point me to where that right was previously established, regardless of sexual orientation. Civil unions, domestic partnerships and marriage are priviledges not rights, or at least they were until this decision was handed down.
>
>>Ok, now you're confusing me. You state that if the opinion simply overturned prop 22 as unconstitutional then you could accept it. It's my understanding that that is exactly what they did. According to Chief Justice Ronald George:
>>
>>The state Constitution's guarantees of personal privacy and autonomy protect "the right of an individual to establish a legally recognized family with the person of one's choice."
>>
>>He also said the Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as opposite-sex couples.
>>
>>This isn't creating new law, it's upholding the constitution.
>>
>>><snip>
>>>
>>>>But again, his is a minority opinion. The majority opinion feels otherwise. If you feel credence should be given to a majority vote by the populace, why would you feel that only the minority vote is valid in the supreme court.
>>>
>>>I am citing the minority opinion because that's the opinion that concerns the constitutional role of the judiciary. These are two different types of votes/opinions. The vote on Prop 22 is a democratic vote by the populace. The "vote" of a supreme court member is legal opinion. Equating a losing vote in an election to a legal opinion of a supreme court justice is not a valid comparison.
>>>
>>>In this case new law has been created where previously it did not exist. If the opinion simply overturned Prop 22 as unconstitutional, then I could accept that the judiciary did their duty and interpreted the new law. There would still be the issue of overturning the vote of the people, however, the people are not allowed to trample on existing constitutional rights. However, in this case, they went further, and created new law. That is the role of the legislature, not the judiciary and therein lies my concern.
>>>
>>>I understand that throughout our history we've had several cases where the judiciary has acted in this manner. Some most agree are good, ie Brown vs. Board of Education, some most agree are bad, ie Kelo v. New London, but the issue for me is the role of the court. This is not their constitutionally defined role.
>>>
>>>In addition, by ruling this way, they have kept the fight alive. In my opinion Prop 22 could've been overturned as unconstitutional and then the legislature could've taken up the law again and gone through the process. Instead the California Supreme Court has now thrown the issue back in the faces of those who take it WAY too seriously on the right. This November there will now be a State Constitutional Amendment on the ballot, which very well could pass, and if so the state supreme court will have an enormously more difficult task overturning.