>The majority opinion is based on their interpretation that the rights of personal privacy and autonomy include the right to marry the person of one's choice. I don't see that opinion as being far fetched.
>
>I'm not entirely sure that the court meant that marriage in itself is a right. I think that what they said was that once a person decides to enter into a marriage, it is his/her right to choose the person with whom to enter into it. And it is contrary to the rights of personal privacy and autonomy for the state to tell that person that his/her choice is invalid. Thus, any laws the state makes to curtail those rights is unconstitutional.

From pages 5-7 of the majority opinion:
"Although, as an historical matter, civil marriage and the rights associated with it traditionally have been afforded only to opposite-sex couples, this court’s landmark decision 60 years ago in Perez v. Sharp (1948) 32 Cal.2d 7114 — which found that California’s statutory provisions prohibiting interracial marriages were inconsistent with the fundamental constitutional right to marry, notwithstanding the circumstance that statutory prohibitions on interracial marriage had existed since the founding of the state — makes clear that history alone is not invariably an appropriate guide for determining the meaning and scope of this fundamental, constitutional guarantee."

"As discussed below, upon review of the numerous California decisions that
have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution), we conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated
or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, 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."

The majority has interpreted a fundamental right to marry within the California Constitution. While they mention "personal privacy and autonomy" that is not the basis they are using, they are specifically citing "marriage" as being a Constitutionally guaranteed right. As the dissenting opinions point out, this is a new designation.

>I realised from the beginning of all this that you are not stating in favour of the intent of prop 22, and that you are arguing only about the fact that you feel the court overstepped it's bounds. I make no bones that I think prop 22 is a nasty piece of work developed by small minded people, but at the same time, I disagree that the courts went over the line. I hope that my feeling that way is not an emotional response to a proposition that I see as no different than declaring that marriage is only legal between people of the same colour, but I suppose it's possible. I don't think so, but then, maybe...

I agree that Prop 22 is a poorly written piece of bigoted tripe which should've been overturned under the equal protection clause. However, the court has overstepped its bounds, which is the main focus of the dissenting opinions. This should've been a 5-2 or even a 6-1 ruling, but for the "legal jujitsu" that the majority engaged in.

>>This is the definition of marriage as provided by the majority opinion:
>>
>>-"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"
>>
>>-"the right of an individual to enter into a consensual relationship with another person"
>>
>>-"the means available to an individual to establish, with a loved one of his or her choice, an officially recognized family relationship"
>>
>>-"the right to marry represents the right of an individual to establish a legally recognized family with the person of one's choice"
>>
>>I'm not arguing for or against the definition, I'm pointing out that it did not exist prior to this ruling. This definition is inferred by the majority through prior cases and legislative acts. It does not exist as a part of the Constitution or the State Code. This is new law.
>>
>>>>I think you're missing my main problem with the ruling. I can accept that the court sees this issue as Constitutional. However, the case in question dealt with Prop 22. If the proposition violates the Constitution then they must rule to overturn it. This is the role of the judiciary.
>>>>
>>>>What happened, however, is that the majority went further and declared that "marriage" is a "fundamental right" of the citizenry. This is not the case. Such a declaration does not exist in the US or California Constitutions. Marriage is a privilege, bestowed upon the citizenry by the state with legal benefits and restrictions. This is not their purview. In California, the legislature and the citizenry, through the proposition process, are charged with the creation of law, not the judiciary.
>>>>
>>>
>>>So then, you disagree with the court's statement that 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." and that this 'right' must extend to everyone regardless of sexual preference. The court has interpreted this as a 'right'. If the guarantee of personal privacy and autonomy are not rights, then what are they? If they are, then, you're just arguing interpretation and not really 'wording'. If they are 'rights', then I think the court was perfectly justified in interpreting these rights to include marriage.
>>>
>>>>Once again, I understand that the Court has not charted any new ground here, but that doesn't mean that its correct.
>>>>
>>>>As an aside to the legal discussion, I agree with you about this not being the end. In fact, what the court did has probably made things worse. There was already an initiative headed to the ballot in November to amend the California Constitution to ban same-sex marriage. Without this ruling, I don't think it stood much of a chance, considering the outlook for Republicans in November. However, this ruling will have a dramatic effect on get-out-the-vote efforts. The ruling may prove to be one of those best intentions types of bad decisions for the cause of same-sex marriage. If it passes, there is nothing the State Supreme Court can do.
>>>
>>>I guess they can't really rule that the constitution is unconstitutional, can they. Now that, I'd pay to see.
>>>
>>>>
>>>>>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.