Editor’s Note: Brenda Feigen is counsel to Kenoff & Machtinger, LLP, where she practices anti-discrimination and entertainment law. A graduate of Harvard Law School, she co-founded Ms. Magazine with Gloria Steinem and directed with (now Justice) Ruth Bader Ginsburg the Women’s Rights Project of the ACLU. Her memoir, Not One of the Boys: Living Life as a Feminist, was published by Alfred A. Knopf in 2000. She moved from Manhattan to Los Angeles to produce her first feature film and currently lives there with Joanne Parrent, her longtime partner and spouse. 

It’s been a while since I’ve mouthed off about same-sex marriage in California. Joanne and I even got married since (in July), as did 17,999 other same-sex couples after the state’s Supreme Court in May made gay marriage legal, but before the prohibitive Proposition 8 went into effect on November 5. I’m back to the subject, however, because that same Supreme Court’s ruling this week actually blew my mind.

After declaring last year that gays and lesbians are a protected (“suspect”) class who could not be denied the right to marry, we are now told that we can be denied that right because the majority of voters who voted in November didn’t think we were entitled to that “fundamental” (as the court put it last year) right. Even the word “married” was hitherto important to Chief Justice Ronald George and having to call ourselves “domestic partners” just wasn’t as good, let alone fair. However, this week, again writing for the 6 - 1 majority, he rationalized that it was OK for us to be called “domestic partners.” We carve out, as Chief Justice George put it, "a limited exception (note: now he calls it "limited"!) by reserving the official designation of the term “marriage” for the union of opposite-sex couples, but leaving undisturbed all of the other aspects of a same-sex couple’s constitutional rights to establish an officially recognized and protected family relationship and to the equal protection of the laws.”

WHAT!!! Does that make any sense, especially when held up against the very same court’s previous ruling? Absolutely not. Not only that, but all the chatter about “amendment” vs. “revision” could have made most people totally confused. An amendment is OK for the people to vote up or down but a revision, which the Supreme majority stated, means a "wholesale or fundamental alteration of the constitutional structure that appropriately could be undertaken only by a constitutional convention." Which was it? Justice Moreno in his lonely dissent was clear: "Requiring discrimination against a minority group on the basis of a suspect classification (which the court held applies to gays and lesbians last year) strikes at the core of the promise of equality that underlies our California Constitution and thus ‘represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a "revision" of the state Constitution rather than a mere  "amendment" thereof.’ "

Honestly, the amendment/revision debate, though unfortunately the only way to challenge Prop 8 (in state court), seemed like an analysis of how many angels really do a jig on the top of a pin. It wasn’t the issue; it was about trying to find a way to get at the issue and the way just wasn’t there. It was a thicket in a dense forest of crappy old trees that is the California initiative system. It just doesn’t work for the state that is the world’s fifth largest economy — and has a whole huge bunch of citizens trying to live side by side in it — to allow the voters to make the laws. Direct democracy doesn’t work, we learned in grade school; that’s the reason we have a federal system of government, the reason we have courts and a legislative branch.