One (of the many) issues clouding the debate on this issue is the subject of rights versus privileges.
Rights: Rights, which may be reasonably restricted (such as the prohibition against shouting "fire" not limiting your protected right to express opinions, as the First Amendment intended) may not be universally denied. Government shall/should/must.
Privileges: Actions and benefits which may be granted, based on a set of requirements or restrictions. Government may/could/might.
Driving is the easiest example of a privilege, not a right. In order to get a drivers' license, which is required to operate a motor vehicle on the public streets, a person must pass a written test, a driving competency test, and other restrictions which include age, safe driving record, sightedness, etc.
An individual (in most states) is not denied the ability to operate a motor vehicle on their private property or on the property of someone else who allows it, i.e., a child can drive his father's truck on the father's farm without a license. If the child drives the vehicle onto the public street, the child can be issued a citation (and the parent may be prosecuted for failing to properly supervise the child).
Similarly, an individual who, for whatever set of reasons, does not want to drive or cannot pass the requirements for a driver's license, may get an ID card. That is not uniform or available in all the states, but it is true for some, including California.
Civil marriage is not a right. It is a privilege. That's why it requires a license. The fact that it requires a license is the huge, flashing clue that it is not a right. Rights, by definition, cannot require a license. It is the ability to get the license, to change the requirements of couples wishing to get a marriage license, that the same-sex marriage advocates are fighting for. The citizens of California get to decide this matter, as it is (primarily) a monetary issue.
California law is entirely consistent (now) on this issue, as it is with other privileges that are handled by the issuance of a license.
No two people of the same sex can get a marriage license, regardless of their sexual orientation: gays, lesbians, and straights cannot get a license to marry someone of the same sex. In that sense, there is no discrimination on this issue.
Two (or more) people of the same sex can live together, just as individuals can drive on their own property without a license. They can commit to each other in a private ceremony (of religious or secular nature). They can initiate vows, contracts, and any other private arrangement to solidify and sanctify their relationship in the private sphere (among their family and friends, and all else who wish to validate and recognize their relationship).
Just as with driving, their inability to obtain a civil marriage license means they cannot take their relationship into the "public street," with official recognition of their status as "married," and thusly, afforded all the privileges and protection of a civil marriage.
In California, same-sex couples can get the equivalent of an ID card (in lieu of a drivers' license) for like reasons, which recognizes their relationship, but is distinct from marriage. The couple (or any multiple of parties) may create contracts such as a Durable Power of Attorney, Wills, or property ownership contracts. They can buy property together, and specify who owns what or what portion if the contract is cancelled/revoked by any of the parties.
The distinction (and separate definitions) of rights versus privileges seems to be lost on some people (commenter "Stealth," The Volokh Conspiracy, California Prop. 8 Upheld, But Held Not To Affect Existing Same-Sex Marriages, May 26, 2009):
The court essentially ruled that a simple majority of the state electorate can prohibit a minority from exercising a fundamental right, and that's not something to get outraged about?
The "simple majority" is how California decided to handle matters such as this. The "simple majority" did not deny anyone a "fundamental right" because marriage is a privilege, not a right. Regardless, same-sex marriage was not denied to a minority. Same-sex marriage was denied by the voters of California (twice) to all citizens of California, regardless of age, religion, race, creed, gender, or sexual orientation.
The majority of Californians could have decided differently. They could have voted to allow same-sex marriage to all its citizens (regardless of age, religion, race, creed, gender, or sexual orientation), but they didn't. Californians have not denied couples (or multiples) of the same sex the abiltity cohabitate, declare their love, devotion or admiration for each other, nor denied them any function or access such as establishing contracts, bonds, or making vows or commitments.
It's just the financial benefits and the official status of "marriage" that has been denied to all same-sex couples.
If you support the right of the citizenry to establish laws and constitutions, then you should be pleased that it worked in California; the courts did not attempt to legislate away the rights of the people of California to decide these matters through the ballot box and the majority prevailing. You don't have to agree with how the majority decided, only to recognize the right of majorities to decide these matters.
"If we are faithful to our country, if we acquiesce, with good will, in the decisions of the majority, and the nation moves in mass in the same direction, although it may not be that which every individual thinks best, we have nothing to fear from any quarter."- Thomas Jefferson, 1808
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