Justice Carlos R. Moreno dissented, calling the ruling "not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.
"The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry," Moreno wrote, "it places at risk the state constitutional rights of all disfavored minorities."
Gay rights advocates and several legal scholars said they were surprised that the court did not attempt to rein in constitutional amendments.
"For the court to see only structural changes as those requiring a greater majority is perhaps the worst feature of the opinion today," said Pepperdine University law professor Douglas W. Kmiec, who voted for Proposition 8 on religious grounds. "It makes it much too casual for individual rights to be withdrawn."
Andrew Pugno, a lawyer for the Proposition 8 campaign, said the court simply embraced what had been the law.
"Under this ruling, voters -- no matter what the hypothetical -- the voters can do anything they want with the state Constitution," Pugno said. If interracial marriage were not protected by the federal Constitution, voters could repeal it, he said.
During oral arguments in March, the court appeared to struggle over how to ensure that minority rights would not be trampled while still upholding Proposition 8.
But instead of curbing the amendment process, the court gave "a blank check to the voters without any limiting principle enunciated," said Kate Kendell, head of the National Center for Lesbian Rights.
Shannon Price Minter, who helped argue the challenge for Kendell's group, said he doubted the ruling would have much influence outside California.
"It is such an internally contradictory ruling that I doubt it will be followed anywhere else," he said.
Ted Olson and David Boies, two prominent lawyers who had been on opposite sides in the Bush vs. Gore case, said they are coming together to challenge Proposition 8 in federal court. Gay rights lawyers have urged supporters to stay out of federal court, fearful of a U.S. Supreme Court ruling that could set the same-sex marriage movement back decades.
In addition to rejecting the gay rights groups' argument that Proposition 8 was an illegal revision, the court flatly discarded Atty. Gen. Jerry Brown's contention that the measure should be overturned because it took away an inalienable right.
"No authority supports the attorney general's claim," the court said.
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maura.dolan@latimes.com
