I actually think they are going to win and that it was all planned out.
• 1st step was to give all the rights of marriage to homosexuals under the “domestic partnership” legislation. (Thanks Arnold. /s)
• 2nd step was to get some people ‘officially married”, no matter what it took, and argue that it would be discriminatory to not allow it, since they are already allowed to enter into domestic partnerships. This set up the basis for the first Supreme Court case. (Enter Newsom)
• 3rd step was to get the Supreme Court to acknowledge same-sex marriage as legitimate, which they did in May 2008 and allowed more people to marry from June 2008 until November 2008 when the constitution was amended to define marriage. 18,000 ‘marriages’ took place.
• 4th step was to get the Supreme Court, at a minimum, to allow the 18,000 marriages to be recognized, despite the Prop 8 definition of marriage.
So now, what you have can be argued as a “separate but equal” issue under the 14th amendment. It really sucks.
The SOCAL ruled (correctly) that, in the absence of explicit retroactive language, the existing marriages could not be interefered with. If the proposition was supposed to do that, it needed to be expressly written into the language.