Is Marriage a ‘Right?’

Yesterday, the California Supreme Court heard arguments on Prop 8, and while I didn’t follow the arguments closely, I don’t really understand Andrew Sullivan’s position on the proceedings.

I get that he’d like to see voters affirm his right to marriage, rather than have it gifted by a judicial fiat certain to be loudly denounced by conservatives, but it seems to me that if the Judges rule that Prop 8 stands, then theoretically at least, same-sex marriage could be an on-again/off-again proposition for many years to come.

From what I (a non legal person, following this with interest but not devotion) understand, this is the story so far:

1) Gays tried to marry, courts said they can’t.

2) Gays go to Supreme Court, Court rules that marriage is a ‘fundamental right,’  and that same-sex couples can’t be discriminated against.

3) Prop 8 passes, gay marriage outlawed.

4) State goes to court to argue that Prop 8 amounts to an unlawful amendment to the State Constitution, and should be overturned.

5) Where we are today: the court seems poised to decide they don’t want to overrule voters, thus Prop 8 will stand, but the 18,000 legally consecrated marriages that happened between step  (2) and step (3) will probably not be invalidated.

6) Andrew Sullivan thinks this is fine, because while he agrees his marriage is a fundamental right, he doesn’t want to overturn majority rule to get it.

Here’s where I get confused – if the Court does in fact rule this way, and in 2 years the Anti-8 crowd succeeds in getting a new referendum passed – what’s to keep the Pro-8 crowd from starting up another petition right away?  What if in 2010 gay marriage is legal, but in 2012 it’s not again, and then in 2014 it’s legal once more…. and on and on?

That doesn’t sound like something that can happen to a ‘fundimental right.’

The Court ruled last year that the California Constitution protects marriage as a right, so how am I wrong in thinking that this right can be abridged by any method but by Constitutional amendment?

I don’t see how the Court can rule for this and reamain consistent.  Moreover, I don’t see how a ruling that upholds Prop 8 solves this problem…. ever.