THE CALIFORNIA Supreme Court's ruling upholding Proposition 8, which stated that "only a marriage between a man and a woman is legal and valid in the state," is a setback for gay rights. The court did, however, allow the 18,000 same-sex marriages that took place before Prop. 8 was passed to stand.
Certainly, the court's ruling is a disappointment to those, including this newspaper, who opposed Prop. 8 because it overturned an expansion of the equal protection clause to include the rights of homosexuals to marry.
But the latest court ruling is hardly the last word on same-sex marriage in California. Efforts to place a measure on the ballot invalidating Prop. 8 are already being considered.
A 6-1 majority of the court agreed that the voters had a fundamental right to amend their state constitution to modify the equal protection clause. The ruling centered on the question of whether Prop. 8 was a simple amendment or a constitutional revision.
Amendments can be placed on the ballot by a voter initiative. Revisions, on the other hand, require a vote of the Legislature before they go before the voters.
In its Tuesday ruling, the court decided that the change to its own 2008 decision upholding gay marriage was not a major revision of the equal protection clause.
Chief Justice Ron George wrote, "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."
That is an unfortunate conclusion, but an understandable one, given California's laws and precedents regarding constitutional ballot initiatives.
It is also unfortunate that California is, at least temporarily, no longer in the forefront of broadening gay rights, falling behind several New England states and Iowa, which have upheld gay marriage.
However, supporters of same-sex marriage rights can follow in the footsteps of their opponents with their own ballot initiative.
It appears that time is on the side of those who want to expand gay rights. In 2000, Californians passed a statutory initiative banning gay marriages with 61 percent of the vote. In 2008, Prop. 8 passed with just 52 percent after trailing until the final days of the campaign.
We disagree with those who argued that Prop. 8 did not diminish gay rights because they are protected by domestic partnerships.
Domestic partnerships and marriage aren't the same. If they were, there would be no issue and no motivation for promoting a constitutional amendment that actually delineates the difference.
While the California Supreme Court agreed in 2008 that there is a real difference between marriage and domestic partnership, it ruled on Tuesday that the difference was not enough to constitute a fundamental alteration of the constitution.
The ruling leaves the door open to future initiatives on gay marriage, that the court is likely to uphold. We believe that the initiative process is the best course for supporters of same-sex marriage and would be far more productive than acts of violence, civil disobedience or personal attacks on Prop. 8 supporters.