I don't think your characterization of the California Supreme Court's opinion is quite correct. While the decision may ultimately turn on the equality question, the opinion recognizes a right to marriage within the California constitution, long established, and uses this to support its conclusions. I dare say that the greatest problem with the majority opinion is its unresolved tension between the idea that marriage is the creation of positive law and the idea that marriage is a natural right.
One problem is that marriage is used two ways meaning two different things. The marraige in Cana allegedly attended by Jesus was without any legal sanction. It was merely the community recognizing a relationship but without any state involvement. We have the term common-law marriage which implies the relationship exists but without an official legal sanction. Of course, as the State grows and expands in powers (a bad thing all around) then more and more areas get pushed into the regulated realm and many rights are only acknowledged by the State if one has the permit.
The right to marriage does exist and the state of California created just such a category. My reading of the S.C. decision was that equality before the law mandates it include gays as well.
But marriage is interesting in that it is a natural right and a civil right because it comprises several elements. Some of those elements predate the State's involvement and others are entirely creations of the state.
Commenting by HaloScan
