Well, there is a separate line of argument which suggests that this is unconstitutional under the 14th amendment of the US Constitution. I believe the overturn prop-8 supporters have been reluctant to champion this too much, because it will get reviewed by S.Ct., and there is no telling which way the court will swing. I’m guessing that’s the position Brown is taking here.
“Well, there is a separate line of argument which suggests that this is unconstitutional under the 14th amendment of the US Constitution.”
I think that’s a risible argument, even under the Romer precedent. For it to be true, it would mean that no state could limit marriage to one man and one woman, and the EP Clause of the 14th Amendment has never been interpreted in such a way by any federal court. As you pointed out, basing the opinion on the 14th Amendment would invite SCOTUS review, and every state supreme court that has instituted gay marriage or civil unions by judicial fiat based its opinion solely on the state constitution’s EP clause so as to avoid SCOTUS review (since SCOTUS surely would overturn the decision).