My thoughts:

Seems to me that the Court in California is hung up on the definition of

marriage as it was understood at the time the Constitution (either the
U.S. or California) was written or at the time the Perez and
Loving decisions were made (which struck down miscegenation
statutes as unconstitutional on both substantive due process and equal
protection grounds). In other words, the Court seems to hollow out the
Petitioners case by mischaracterizing the right to marry in an
inherently limiting way. In this light, the right to marry only protects an
individual's right to choose a partner of an opposite sex. Given that,
the Petitioners appeal seems to necessitate a redefinition of the
term/idea/definition of marriage itself. This characterization of the
issue is insidious because it requires the Court to be "activist,"
enacting social mores instead of enforcing them, a role they do not
embrace.

Pish Posh.

If we're redefining marriage, it's checkmate. A different spin on the

core legal issue is critical. Here it is ...
Marriage and the right to marry have essential characteristics, none of
which reflect race, sex or sexual orientation. Marriage, legally, is the
civil institution and status that recognizes and attaches legal
significance to intimate, private unions. It follows, then, that the right
to marry includes the right to choose one's husband or wife. That
choice is what makes marriage private and intimate ... special. That
choice is what elevates marriage to a form of expression and explains
why it implicates our identity, dignity and humanity. Marriage as a
symbol helps a person define himself or herself vis-a-vis the person
they love, express that love to the world (in a language that is
commonly understood) and receive acknowledgement and legitimacy
from a larger public apparatus. The right to marry, upheld as a
Constitutionally-protected liberty interest, rings hollow when the State
can deny our choice of partner based upon anything less than a
compelling state interest.

Ah.

The worm has turned. The definition of marriage has always been the
same; the State's restrictions upon that right are what face historical
contingencies. The restrictions on marriage have characteristics that
relate to age, race, sex or sexual orientation. When viewed more
clearly, the Petitioners do not want a redefinition of marriage; they
want a justification for an irrational, discriminatory restriction placed
upon the right to marry. To be clear, the definition of marriage before
Perez and Loving was not: the civil institution and status recognizing
and attaching legal significance to intimate, private same-race,
opposite-sex unions. The Petitioners in that case were not redefining
marriage. The same-race restriction was struck down because it was
Constitutionally invalid. The Court's decision did not speak to any
unspoken or implicit (now made explicit) opposite-sex requirement.

The Court has not needed to speak to that until now.

To be sure, the right to marry and choose one's husband or wife are not
absolutes. When there is a compelling state interest, the State may
restrict the right to marry. For example, the State has a compelling
interest in prohibiting adults from marrying children to protect children
from sexual abuse and to foster their full development and autonomy.
Therefore, age-based restrictions on the right to marry satisfy the
required Constitutional scrutiny.

On the other hand, the State is constrained by the Constitution. In

Perez, the Court held that restricting a person's right to choose their
partner based upon race serves no compelling government interest
(nor does it have any rational basis). Consequently, miscegenation
statutes were an invalid exercise of power. The California statutes,
restricting a person's right to choose their husband or wife on the basis
of sex (or sexual orientation) also serve no compelling or rational
purpose and are similarly invalid.

Whether intentional or not, the restriction in question functions to

entrench and legitimize a heterosexist perspective that discounts the
lives and loves of gay people. Restricting the right to marry on the
basis of sex - - or sexual orientation - - they are two sides of the same
coin - - maintains a system of discrimination that prefers gay inferiority
and invisibility. Heterosexism finds any meaningful expression of gay
identity or sexual preference as abhorrent.

Given that, justice requires not just substantive fairness, but

also an unequivocal public expression of that equality. California's
domestic partnership laws do not represent equality; they are 21st
century colored bathrooms. In fact, they are a legal manifestation
and implementation of the closet. Instead of unequivocal, easily-
understood, publicly announced and acknowledged declarations of
love, California law white-outs gay marriage with verbiage usually
reserved for business entities: "partnerships." "Domestic partnership"
doesn't connote love or sexuality. Domestic partners are not husbands
or wives. Consequently, not only does the State distinction serve no
rational or compelling government interest, it reifies the difference,
invisibility and inferiority those laws were meant to combat in the first
place.