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I understand your frustration but my argument isn’t really from the Twilight Zone. I would expect the challenge to take the position that marriage is a basic constitutional right grounded in the U.S. Constitution perhaps in the “privacy penumbra” discovered there in Roe v. Wade. The argument will be that the California Constitution cannot take away a federally-recognized constitutional right. While we might be able to tinker with the federal constitution, state constitutions cannot deny to its citizens federal rights. I think this is part of why we fought the Civil War. So if the gays can get a federal court to rule that marriage is a fundamental right guaranteed by the federal constitution, then it can get the California Constitution overruled.

The Constitutional Ammendment process was for two reasons: one was to keep state courts from interpreting the California Constitution to include a right which would now be specifically prohibited. The other was to keep the Assembly from doing its own mischief against any law which had less-than-constitutional status.

I don’t think the federal court is that sympathetic to the argument of the gays at this point but I do think the gays would certainly do everything they could to challenge the law, first through state courts and eventually to the federal level. The opponents of Prop 8 would then argue that a stay on enforcing the new provision could and probably would be put in place by a state court first and then a federal court. This leaves the ruling of the state court granting marriage rights in place, perhaps for years.

Don’t underestimate the creativity of people who want to overrule the will of the people, especially if a certain presidential candidate sympathetic to their cause gets elected. The Supreme Court has been amenable to a lot of Twilight Zone type of arguments over the centuries.

Passing Prop 8 is not an end but a middle point in this struggle. From here on out, the battle will be continuous. When the domestic partnership provisions were pushed on the people, the gays argued it was needed to allow them to visit their dying loved ones in the hospital. It was a sympathetic vote for many. From the time it was passed to this very year, gays have had legislation passed in every session of the Assembly to expand this right to where it is now equal in the state to marriage in all but name. They want the name. They want the argument to push full faith and credit on every state in the union. They want everything marriage has to offer except the true rewards of marriage which is becoming one with your spouse and procreation. They won’t stop until they get everything they want or destroy it for everyone if they can’t get what they want.

The problem is the California Supreme Court decided according to the California Constitution so no federal appeal is possible. Now the privacy clause in the California Constitution has been found by state courts to provide a right to abortion and now to provide a right to same sex marriage. That's surely not what voters meant when they passed it back in 1972. What Prop. 8 does is to clarify the privacy clause by telling state courts the California Constitution emphatically does NOT confer any judicially created right to same sex marriage. It does not exist. So the people can tell the California Supreme Court that it read the state constitution wrong and overrule them. Its to be noted there's no explicit privacy clause in the federal Constitution but the U.S Supreme Court still found on by judicial activism to legalize abortion and sodomy. So a federal marriage amendment may well be needed down the road. Today, we have do two things: get Prop. 8 passed and stop Barack Obama from getting elected to appoint the kind of Justices to the SCOTUS who are the only people who could overrule Prop. 8 contrary to the will of the people. Those are the stakes in this election.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

“I understand your frustration but my argument isn’t really from the Twilight Zone. I would expect the challenge to take the position that marriage is a basic constitutional right grounded in the U.S. Constitution perhaps in the “privacy penumbra” discovered there in Roe v. Wade. The argument will be that the California Constitution cannot take away a federally-recognized constitutional right. While we might be able to tinker with the federal constitution, state constitutions cannot deny to its citizens federal rights.”

I agree with this.

I think we had a misunderstanding. Please read my comment again. I thought you were saying that they would try to get it overturned by the California Supremes on state constitutional grounds, not federal constitutional grounds. State courts often do hold that their state constitutions are more protective of rights than the federal constitution, but I thought it would be odd for gay activists to make the claim that the California constitution, on its own, still prohibited banning gay marriage if Prop 8 were to pass. I realize (and did point out) that a separate argument could be made based on federal constitutional rights that apply to the states due to the 14th Amendment. That argument is the one I meant was somewhat reasonable. It’s the other argument about the state constitution on its own still being able to be construed in a way that requires gay marriage that seemed to me to be from The Twilight Zone. I think the court would be extremely activist if it struck down Proposition 8 without referring to the federal constitution. It’d certainly be unprecedented in many states. That’s why I asked about CA case law.

But all of that is just explanation, because as I said, i think we had a bit of a misunderstanding. We agree that the gay activists’ attack to Prop 8 (assuming it passes) will be based on the federal marriage “right”